231. Questions of law and fact, how sub- 233. Questions of law and what of fact to be decided by the court.

mitted and when.

232. Questions of fact to be decided by

the jury.

Questions of law

mitted and when.

SEC. 231. Any party may, when the evidence is closed, submit in distinct and concise propositions the conclusions of fact which he and fact, how subclaims to be established or the conclusions of law which he desires to be adjudged, or both. They may be written and handed to the court, or, at the option of the court, oral, and entered in the judge's minutes. SEC. 232. All questions of fact other than those mentioned in section two hundred and thirty-three shall be decided by the jury, and all to be decided by evidence thereon addressed to them. the jury.

Questions of fact

court.

SEC. 233. All questions of law, including the admissibility of testi- Questions of law mony, the facts preliminary to such admission, and the construction and what of fact to of statutes and other writings and other rules of evidence, are to be be decided by the decided by the court, and all discussions of law addressed to it; and whenever the knowledge of the court is by this code made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it as conclusive.

SEC. 234. A judgment is the final determination of the rights of the parties in the action.

Judgment defined.

SEC. 235. Judgment may be given for or against one or more of -may be given several plaintiffs, and for or against one or more of several defendants; for or against any and it may, when the justice of the case requires it, determine the of the parties. ultimate rights of the parties on each side as between themselves. SEC. 236. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, whenever against one a several judgment is proper, leaving the action to proceed against the

others.

CHAPTER TWENTY-FIVE.

OF JUDGMENT OF NONSUIT.

-when given

re

more, action mains pending as to others..

237. When judgment of nonsuit may be 239. Effect of judgment of nonsuit. given.

238. What is a cause not sufficient to be

submitted to the jury.

SEC. 237. A judgment of nonsuit may be given against the plaintiff as provided in this chapter

First. On motion of the plaintiff, at any time before trial, unless a counterclaim has been pleaded as a defense;

Second. On motion of either party, upon the written consent of the other filed with the clerk;

When judgment of nonsuit may be given.

What is a cause

Third. On motion of the defendant, when the action is called for trial and the plaintiff fails to appear, or when, after the trial has begun and before the final submission of the cause, the plaintiff abandons it, or when, upon the trial, the plaintiff fails to prove a cause sufficient to be submitted to the jury.

SEC. 238. A cause not sufficient to be submitted to the jury is one not sufficient to be where it appears that if the jury were to find a verdict for the plaintiff upon any or all of the issues to be tried the court ought, if required, to set it aside for want of evidence to support it.

submitted to the jury.

Effect of judgment of nonsuit.

SEC. 239. When a judgment of nonsuit is given, the action is dismissed; but such judgment shall not have the effect to bar another action for the same cause.

CHAPTER TWENTY-SIX.

OF JUDGMENT OF FAILURE TO ANSWER.

When judgment may be given for want of answer.

Sec.

240. When judgment may be given for want of answer.

SEC. 240. Judgment may be had upon failure to answer, as follows: When the time for answering the complaint has expired and it -on expiration appears that the defendant, or one or more of several defendants, in of time for mak- the cases mentioned in section fifty-one, has been duly served with the ing. summons and has failed to answer the complaint, the plaintiff shall be entitled to have judgment against such defendant or defendants—

-actions on con

tract for recovery of money or damages.

-other actions.

-upon admis

sion of claim, but

where counter

claim for less

amount set up. -in case of

cation.

First. In an action arising upon contract for the recovery of money or damages only; if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted by the court or judge thereof, the clerk, upon the application of the plaintiff made in writing and filed with the clerk, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, including the costs of the defendant, or against one or more of several defendants, in cases provided for in section fifty-one;

Second. In other actions, if no answer has been filed with the clerk of the court within the time specified in the summons or such further time as may have been granted by the court or judge thereof, the clerk shall, upon the written motion of the plaintiff being filed, enter the default of the defendant, and thereafter the plaintiff may apply at the first or any subsequent term of the court for the relief demanded in the complaint; and the court shall, upon such demand, give judgment for the amount claimed in the summons, or the relief demanded in the complaint, unless it be necessary, to enable the court to give judgment or carry the same into effect, to take proof of any matter of fact, in which case the court may order the entry of judgment to be delayed until such proof be taken. The court may hear the proof itself, or make an order of reference, or order that a jury be called to inquire thereof. The defendant shall not be precluded, by reason of his default, from offering proof in mitigation of damages;

Third. When the defendant has answered, and admits the plaintiff's claim, but sets up a counterclaim amounting to less than the plaintiff's claim, the plaintiff, on motion, shall have judgment for the excess of his claim over such counterclaim, as for want of answer thereto;

Fourth. When in any action the service of the summons appears to service by publi- have been made by publication, the court may, in its discretion, order the entry of judgment to be delayed until the plaintiff file with the clerk an undertaking, with one or more sureties, to be approved by the clerk, in an amount equal to the sum for which judgment may be given, upon the condition that the plaintiff will abide by and perform any order of the court requiring restitution to be made to the defend

ant or his representative in case either of them shall afterwards be admitted to defend the action. The sureties in the undertaking shall have the qualifications of bail, and justify before the clerk as provided in section one hundred and nine.

SEC. 241. On the confession of the defendant, with the assent of the plaintiff or his attorney, judgment may be given against the defendant in any action, before or after answer, for any amount or relief not exceeding or different from that demanded in the complaint.

Judgment by confession where action pending.

Who to make

SEC. 242. When the action is against a public corporation or a private corporation, the confession shall be made by the person who at confession. the time sustains the relation to such corporation as would authorize the service of a summons upon him. In all other cases the confession shall be made by the defendant in person.

When judgment

SEC. 243. When the action is upon a contract, and against one or more defendants jointly liable, judgment may be given on the confes- may be given sion of one or more defendants against all the defendants thus jointly fendants on the against several deliable, whether such defendants have been served with the summons or confession of one. not, to be enforced only against their joint property and against the joint and separate property of the defendant making the confession.

Confession to be

SEC. 244. The confession and assent thereto shall be in writing, and subscribed by the parties or their attorneys making the same, and in writing; how acknowledged by each before some officer authorized to take acknowl- judgment given. edgments of deeds, but such acknowledgment is not required when the parties or their attorneys shall appear in court when the judgment is given, or before the clerk in vacation by whom the judgment is entered. In all cases the confession and assent thereto and the acknowledgment, if any, shall be filed with the clerk.

action.

SEC. 245. On the confession of any person capable by this code of Judgment by being made a party defendant to an action, judgment may be given confession without against such person without action, in term time or vacation, in favor of anyone, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant in such judgment, or both, if it be in favor of the same person.

SEC. 246. The confession shall be made, assented to, and acknowledged, and judgment given in the same manner as a confession in an action pending; besides which, the confession shall be verified by the oath of the party making it, and shall authorize a judgment to be given for a particular sum. If it be for money due or to become due it shall state plainly and concisely the facts out of which such indebtedness arose, and shall show that the sum confessed therefor is justly due or to become due.

How confession made in such cases.

Same subject. Execution when

SEC. 247. If it be for the purpose of securing the plaintiff in the judgment against a contingent liability, it shall state plainly and con- judgment for incisely the facts constituting such liability and shall show that the sum stallments. confessed therefor does not exceed the same. When judgment is given so as to be payable in installments, executions may issue to enforce the payment of such installments as they become due.

Controversy may

Sec.

CHAPTER TWENTY-EIGHT.

OF SUBMITTING CONTROVERSY WITHOUT ACTION.

Sec.

248. Controversy may be submitted with- 250. Statement to be filed with the clerk.

out action.

249. Statement of the case and verifica

tion thereof.

Jurisdiction of court.

SEC. 248. Parties to a question in controversy which might be the be submitted with- subject of an action in a court of record, with such parties plaintiffs or defendants, may submit the same to the determination of such court without action, as in this chapter provided.

out action.

Statement of the

tion thereof.

SEC. 249. The parties as plaintiff and defendant shall state, in writcase and verifica- ing, a case containing the facts upon which the controversy depends, and subscribe the same in person or by their attorneys. Such statement shall be verified by the oaths of the parties, or, where there is more than one plaintiff or defendant, by at least one of each, to the effect that the controversy is real, and the proceeding is taken in good faith to determine the rights of the parties. Where either party to the controversy is a public corporation, or a private corporation, the statement of the case may be subscribed and verified by any person who at the time sustains the relation to such corporation as would authorize the service of a summons upon him.

Statement to be

SEC. 250. The statement shall be filed with the clerk, and from the filed with the date of such filing the court shall have jurisdiction of the controversy as if the same were an action pending after a special verdict found, and shall proceed to hear and determine the same accordingly.

clerk. Jurisdiction of court.

CHAPTER TWENTY-NINE.

Judgment to be entered in journal; manner of entry.

If counterclaim

SEC. 251. All judgments shall be entered by the clerk in the journal, and shall specify clearly the amount to be recovered, the relief granted, or other determination of the action. If entered in vacation, the entry shall be entitled and dated substantially as follows:

UNITED STATES OF AMERICA,

District of Alaska.

Precinct

District court for the district of Alaska. In vacation, after the term, A. D. 19

as the fact may be, and such entry shall have the same effect as if entered in term time. In the entry of all judgments, except judgments by default for want of an answer, the clerk shall be subject to the direction of the court.

SEC. 252. If a counterclaim established at the trial exceed the plainexceeds plaintiff's tiff's demand so established judgment for the defendant shall be given demand, judgment for defendant. for the excess; or if it appear that the defendant is entitled to any other affirmative relief judgment shall be given accordingly.

property.

SEC. 253. In an action to recover the possession of personal property Judgment in judgment for the plaintiff may be for the possession, or the value actions for the rethereof in case a delivery can not be had, and damages for the deten-covery of personal tion thereof. If the property have been delivered to the plaintiff and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return can not be had, and damages for taking and withholding the

same.

for want of answer.

SEC. 254. When judgment is given for want of answer, the entry What entry to shall state substantially that the defendant has been duly served with state in judgment the summons and has failed to answer the complaint. When judgment is given on confession, with or without action, on the report of referees or on a controversy submitted without action, the entry shall state in like manner the confession and assent thereto, the report of the referees, or agreed case, as the case may be.

SEC. 255. When a decision has been made sustaining or overruling Judgment on dea demurrer, unless the party against whom the decision is made be murrer. allowed to amend or plead over, judgment shall be given for the plaintiff or defendant, as the case may be, for such amount or relief, or to such effect, as it appears from the pleadings he is entitled to; but if the case is otherwise at issue upon a question of fact, the court may order the entry of judgment to be delayed until such issue be tried or otherwise disposed of.

When entry of

SEC. 256. When judgment is given in any of the cases mentioned in the two sections last preceding, unless otherwise ordered by the judgment made. court, it shall be entered by the clerk within the day it is given. Except as in this section hereinafter provided, when a trial by the court has been had judgment shall be entered by the clerk in conformity with the decision within two days from the time the same is filed; or if the trial be by jury, judgment shall be given by the court in conformity therewith, and entered by the clerk within two days from the time the verdict has been received; and in either case within the term at which such judgment is given.

First. When the court is in doubt what judgment ought to be given, it may order the question to be reserved for argument or further consideration, and thereupon the entry of judgment shall be delayed until judgment be given;

Second. When, within the time allowed to file a motion for new trial, either party shall file a motion for a particular judgment, or for judgment notwithstanding the verdict or decision; or,

Third. When a motion for new trial is filed within the time prescribed, the entry of judgment shall be thereby delayed until the motion is disposed of;

Fourth. When, upon a trial by the court, its decision is filed in vacation, the entry of judgment shall be delayed until the expiration of the time prescribed to file a motion for a new trial.

Judgment, not

verdict.

SEC. 257. When it appears from the pleadings that the court has not jurisdiction of the subject of the action or the person of the defend- withstanding the ant, or that the facts stated in the pleadings of the plaintiff or defendant, as the case may be, do not constitute a cause of action or defense thereto, on motion judgment shall be given for the plaintiff or defendant, as the case may be, notwithstanding the verdict or decision.

When entry of judgment made

SEC. 258. When a motion for new trial, for a particular judgment, or for a judgment notwithstanding the verdict, is decided in vacation, after motion for the decision shall be in writing and filed with the clerk. Within the new trial decided day of such filing judgment shall be entered by the clerk in conformity in vacation. with the decision.

SEC. 259. When the clerk is unable or omits to enter judgment within Entry of judgthe time prescribed in this chapter, if the judgment has been given in mentafter the time vacation, it may be entered at any time thereafter, of the date which

prescribed.