1851.

For what caus

may be granted.

ARTICLE V..

New Trials.

§ 381. A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury or a decision es a new trial by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party:

For what caus

1. Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.

2. Misconduct of the jury or prevailing party.

3. Accident or surprise which ordinary prudence could not have guarded against.

4. Excessive damages, appearing to have been given under the influence of passion or prejudice.

5. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property.

6. That the verdict or decision is not sustained by sufficient evidence, or is contrary to law.

7. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.

8. Error of law occurring at the trial, and excepted to by the party making the application.

§ 382. A new trial shall not be granted on account of the smallness of damages in an action for an injury to the be person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury' sus

es a new trial shall not granted.

tained.

§383. The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause mentioned in subdivision seven of section three hundred and eighty-one, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.

§ 384. The application must be by motion upon written grounds filed at the time of making the motion. The grounds mentioned in the second, third, and seventh subdivision of section three hundred and eighty-one, must be sustained by affidavits showing their truth, and may be controverted by affidavits.

§385. Where grounds for a new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by a petition filed with the clerk not later than the second term after the discovery, on which a summons shall issue, as on other petitions, requi

ring the adverse party to appear and answer it, on or before the first day of the next term. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court. The evidence may be either by depositions, or by witnesses examined in court. But no such application shall be made more than three years after the final judgment was rendered.

ARTICLE I.

General provisions.

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Plaintiff may recover

entitled.

such

§ 386. Wherever damages are recoverable, the plaintiff may claim and recover any rate of damages to which he damages as he is may be entitled for the cause of action established. § 387. The provisions of this title respecting trials by jury, apply, so far as they are in their nature applicable, trials applicable to trials by the court.

ARTICLE VII.

Time of trial.

Provisions concerning jury

to trials by court

Dockets to be kept by clerk

§ 388. The clerk shall keep three separate dockets, which shall be called the "common docket," the "equity docket," common, equity, and the "motion docket."

& motion dock

ets.

§ 389. On the common docket shall be entered all actions prosecuted by ordinary proceedings, in the order in which Common docket they were brought.

$390. The common docket shall be made out for each term of the court; and the actions shall be set for particular days, and so arranged by the clerk that the cases set for each day shall be tried, as nearly as may be, on that day.

391. The trial of any issue of fact or assessment of damages by a jury in any case, shall be on or after the day which it is set on the docket.

To be made out at each term.

Causes not to be day set on

tried before the

docket.

§ 392. On the equity docket shall be entered all actions prosecuted by equitable proceedings, in the order in which Equity docket. they were brought.

the

$393. On the motion docket may be entered any motion Motion docket. relating to proceedings in the court.

Names of par.

neys to be enter

§ 394. The entry on all the dockets shall give the name of the plaintiff and defendant, or if there are more than ties and attor one, then, of the first named in the pleadings, with the ed on dockets. words "and others" added thereto, and the names of the attorneys.

Other entries

§ 395. The entry on the common docket shall also show whether or not the summons has been fully served in due to be made on time for trial, and whether or not the issues have been formed.

$396. The entry on the motion docket shall show the date of the entry and the object of the motion.

§ 397. The first hour of each day of the term shall be

common docket

Entries to bo made on motion docket.

First hour of

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devoted to hearing motions, in which the court shall first each day devo call the motion docket, and then, upon the attorneys present, for motions.

ted to motions.

Court may hear sues of law on

and decide is.

third day.

§ 398. If the hour is not consumed in motions, the court may proceed, during the remainder thereof, to call the equity docket.

§ 399. At the expiration of the motion hour, the court, except on the third day of the term, shall proceed to the call of the common docket and the trial of the issues until the call is completed, and then to the call of the equity docket.

§ 400. On each day of the term, the court shall, immediately after the hearing of motions, call all the cases on the common docket set for that day in which the summons has been served in due time, as provided in section one hundred and sixty-one, and in which no issue of fact has been formed; and, upon failure to defend, may render judgment; and at the same time may hear and determine all issues of law in such actions, and render judgment, or give further time for hearing and deciding them.

§ 401. On the third day of each term, the court shall call all cases on the equity docket in which the summons has been served as provided in section one hundred and sixty-three; and, upon failure to defend, may give judg

ment.

§ 402. On the third day, the court may hear and decide all issues of law in the actions as they are called, and render judgment, or give further time for hearing or deciding them.

§ 403. The entry of a motion on the motion docket, shall tion docket is be considered as making the motion.

Entry on mo

making the motion.

When an action

ceedings stands

for trial.

one.

§ 404. Actions by ordinary proceedings shall stand for trial at the first term after process has been served on the by ordinary pro defendant as specified in section one hundred and sixtyAn action upon contract, wherein the summons has been served in due time as provided in section one hundred and sixty-one upon part only of the defendants, shall stand for trial at the first term as to those so summoned, and may be continued as to the others for further proceedings. In other actions by ordinary proceedings, the plaintiff can only demand a trial at any term as to part of the defendants," upon his discontinuing his action on the first day of such term as to the others.

§ 405. Actions prosecuted by equitable proceedings shall stand for trial at any term, where the pleadings have been, by equitable pro- or, by the provisions of sections one hundred and sixty

When an action

ceedings stands for trial.

three, one hundred and sixty-four, and one hundred and sixty-five, should have been completed ninety days before the commencement of such term. But where they have not been so completed, though they should have been by those sections, the party in default as to time, shall not be entitled to demand a trial.

1851.

When inter

been filed.

When plaintiff entitled to trial

by equitable proceedings.

§ 406. Where interrogatories have been annexed to a pleading in an action by equitable proceedings, the party interrogated shall not be entitled to demand a trial, unless rogatories have he has answered the interrogatories either within twenty days after they were filed, or twenty days before the term. § 407. The plaintiff shall be entitled to a trial in actions by equitable proceedings, at the first term after the summons has been served on all the defendants as provided in section one hundred and sixty-three, where no issue of fact is made by the pleadings, or where the plaintiff consents that the statements of the answer may be taken as true. § 408. Where the summons in an action by equitable proceedings, has been served in due time on part only of the defendants, the plaintiff may dismiss his action as to those ants, in equitanot summoned, and proceed to trial as to the others, in all cases where he could have maintained his action against them without joining those not summoned.

ART. 1. Judgment in general.

CHAPTER 3.
Judgment.

2. Judgment upon failure to answer,

3. Judgment by confession.

4. Manner of giving and entering judgment.

5. Conveyance by commissioners under a judgment.

ARTICLE I.

Judgment in general.

§ 409. A judgment is the final determination of the rights of the parties in an action.

§ 410. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.

Plaintiff may dismiss a to

part of defendble proceedings.

Judgment.

May be given for or against some of parties.

May be render. ed against part and continued

§ 411. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, as to others. whenever a several judgment is proper.

§ 412. An action may be dismissed, without prejudice to a future action

An action may be dismissed without preju.

ture action.

1. By the plaintiff, before the final submission of the dice as to a fu case to the jury, or to the court where the trial is by the court.

2. By the court, where the plaintiff fails to appear on the trial.

3. By the court, for the want of necessary parties. 4. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.

5. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases, upon the trial of the action, the decision must be upon the merits.

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Defendant may proceeed with plaintiff has dis

set-off, although

missed his action.

There may be several judg

ments in same case.

§ 413. In any case where a set-off or counter-claim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear.

§ 414. Though all the defendants have been summoned, judgment may be rendered against any of them severally, where the plaintiff would be entitled to judgments against such defendants if the action had been against them alone. § 415. It shall not be necessary, in any action upon a Final judg. mortgage or lien, to enter an interlocutory judgment or give time for the payment of money, or for doing any other act; but final judgment may, in such cases, be given in the first instance.

ment may be given in mortgage cases at once.

There must be

a sale of mort

gaged property.

Terms on sale

property.

§ 416. In the foreclosure of a mortgage, a sale of the mortgaged property shall, in all cases, be ordered.

§ 417. Sales of personal property or slaves made by order of court, shall be on a credit of three months; sales of real of mortgaged property, on a credit of not less than three nor more than twelve months, or on installments equivalent to not more than twelve months' credit on the whole, to be determined. by the court. In all sales on credit, the purchaser shall execute bond, with good surety, to be approved by the person making the sale, which bond shall have the force of a judgment; and in sales of real property, a lien shall be retained on the property for its price.

appear and confess judgment.

ARTICLE II.

Judgment upon failure to answer.

§ 418. If the taking of an account, or the proof of a fact, or the assessment of damages is necessary to enable the court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may take the account, hear the proof, and, in actions founded on contract, assess the damages, or may refer the same to a commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury is ordered, it shall be on or after the day on which the action is set for trial.

ARTICLE III.

Judgment by confession.

§ 419. Any person indebted, or against whom a cause of Defendant may action exists, may personally appear in a court of competent jurisdiction, and, with the assent of the creditor or person having such cause of action, confess judgment therefor; whereupon, judgment shall be entered accordingly.

§ 420. The debt or cause of action shall be briefly stated Debt or cause in the judgment, or in a writing to be filed as pleadings in of action to be other actions.

briefly stated.

Such judgment

§ 421. Such judgment shall authorize the same proceedfings for its enforcement as judgments rendered in actions.