First. By failing to appear at the trial.

745

Second.-By written consent, in person or by attorney, filed with the

clerk.

Third.-By oral consent in open court, entered in the minutes.

$242. (SEC. 224.) Decision of court, when and how given. Upon the trial of a question of fact by the court, its decision shall be given in writing, and filed with the clerk within twenty days after the term at which the trial took place; in giving the decision, the facts found and the conclusions of law shall be separately stated; judgment upon the decision shall be entered accordingly.

3 M. 30 (67), 41 (83); 5 M. 232 (294), 332 (409); 11 M. 132 (203).

$243. (SEC. 225.) Proceedings and judgment on issue of law. On a judgment for the plaintiff, upon an issue of law, the plaintiff may proceed in the manner prescribed by the statute upon the failure of the defendant to answer where the summons was personally served. If judgment is for the defendant, upon an issue of law, and the taking of an account, or the proof of any fact, is necessary to enable the court to complete the judgment, a reference may be ordered as by statute provided.

10 M. 144 (178).

§ 244. (SEC. 226) Court always open-special terms-decisions filed out of term. In addition to the general terms, the district court is always open for the transaction of all business; for the entry of judgments, of decrees, of orders of course, and all such other orders as have been granted by the court or judges, and for the hearing and determination of all matters brought before the court or judge, except the trial of issues of fact. The judges of the several district courts may, by order, appoint such special terms in the counties of their respective districts as may be deemed necessary or convenient, and at such terms all business herein before mentioned may be transacted. When any matter is heard by the court or judge, the decision may be made out of term; and such decision may be an order, or a direction that an order or judgment or decree be entered; and upon filing in the office of the clerk in the county where the action or proceeding is pending, the decision in writing, signed by the judge, an order or judgment or decree, as the case may require, if any, shall be entered by such clerk, in conformity with such decision. (As amended 1868, c. 90, § 1.)

11 M. 184 (271); 12 M. 437; 14 M. 333; 15 M. 486.

* 245. Trials in vacation, by consent of parties. The judges of the several district courts of this state may, with consent of parties, try issues of law and fact in vacation, and decide such issues either in or out of term; and thereupon judgment may be rendered, with the same effect as upon issues tried and determined in term time. (1872, c. 70, § 1.)

TITLE 18.

TRIAL BY REFEREES.

§ 246. (SEC. 228.) Reference by consent for what purposes. Upon the agreement of the parties to a civil action, or a proceeding of a civil nature, filed with the clerk or entered upon the minutes, a reference may be ordered:

5 M. 58. (78); 160 (201.)

First. To try any or all the issues in such action or proceeding, whether of fact or law, (except an action for divorce,) and to report a judgment thereon; Second. To ascertain and report any fact in such action or special proceeding, or to take and report the evidence therein.

When the parties do not con§ 247. (SEC. 229.) Compulsory reference, in what cases. sent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:

First. When the trial of an issue of fact requires the examination of a long account on either side, in which case the referee may be directed to hear

and decide the whole issue, or to report upon any specific question of, fact involved therein;

19 M. 132.

Second. When the taking of an account is necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; Third. When a question of fact, other than upon the pleadings, arises, upon motion or otherwise, in any stage of the action; or,

Fourth. When it is necessary for the information of the court in a special proceeding of a civil nature.

§ 248. (SEC. 230.) Number and qualifications of referees. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties; or, if the parties do not agree, the court or judge shall appoint one or more persons, not exceeding three, residents of any county in this state, and having the qualification of electors.

$249. (SEC. 231.) Trial by referees-their powers-effect of report-proceedings when report is set aside. The trial by referees shall be conducted in the same manner, and on similar notice, as a trial by the court. They shall have the same power to grant adjournments, and to allow amendments to any pleadings, as the court upon such trial, upon the same terms and with like effect. They shall have the same power to administer oaths and enforce the attendance of witnesses as is possessed by the court. They shall state the facts found and the conclusions of law separately, and their decision shall be given, and may be excepted to and reviewed, in like manner, but not otherwise; and they may in like manner settle a case or exceptions. The report of referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report shall have the effect of a special verdict: provided, that whenever a finding has been made, or a decision or a judgment rendered upon the finding of the referee or referees, and the said finding or decision shall be set aside, or a new trial granted in the action, the cause referred shall be placed upon the calendar for trial by the court or a jury, as the case may be, the same as though no reference had ever been made, subject, nevertheless, to the same right of reference as in the first instance. (As amended 1877, c. 29, § 1.)

2 M. 110 (134); 3 M. 17 (45), 217 (311); 7 M. 351 (442); 8 M. 417 (467): 11 M. 241 (341); 12 M. 61; 22 M. 92, 117. $250. (SEC. 232.) Powers of majority at a meeting of all. When there are three referees, all shall meet, but two of them may do any act which might be done by all; and whenever any authority is conferred on three or more persons, it may be exercised by a majority upon the meeting of all, unless expressly otherwise provided by statute.

TITLE 19.

EXCEPTIONS.

§ 251. (SEC. 233.) "Exception" defined-how stated and settled. An exception is an objection, taken at the trial, to a decision upon a matter of law. The point of the exception shall be particularly stated, and either delivered in writing to the judge, or entered in his minutes, and immediately corrected or added to until made conformable to the truth, or it may afterward be settled in a statement of the case.

1 M. 195 (246); 7 M 207 (267); 8 M. 9 (26), 125 (154), 195 (226), 310 (351); 10 M. 250 (319); 14 M. 105; 15 M. 489; 16 M. 431; 19 M. 132; 23 M. 66, 362. $252. (SEC. 234.) Form of exception. No particular form of exception is required; the objection shall be stated, with so much of the evidence as is necessary to explain it, but no more, and the whole as briefly as possible,

1

TITLE 20,

NEW TRIALS.

§ 253. (SEc. 235.) For what causes granted. A verdict, report or decision may be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes materially affecting the substantial rights of such party.

12 M. 502; 16 M. 25, 457; 20 M. 139, 260.

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

1 M. 131 (156); 2 M. 26 (37); 3 M. 80 (134); 19 M. 132.

Second. Misconduct of the jury or prevailing party;

1 M. 131 (156); 4 M. 340 (438); 20 M. 378; 22 M. 5, 305; 23 M. 178, 197, 291,325. Third. Accident or surprise which ordinary prudence could not have guarded against;

17 M. 172.

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

1 M. 131 (156); 2 M. 26 (37); 22 M. 90.

Fifth. That the verdict, report or decision is not justified by the evidence, or is contrary to law;

3 M. 80 (134); 7 M. 254 (325); 10 M. 246 (313); 11 M. 204 (296); 13 M. 235: 15 M. 257; 20 M. 277. Sixth. Newly-discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial;

4 M. 340 (438); 5 M. 134 (171); 7 M. 166 (225); 9 M. 301 (318); 19 M. 394.

Seventh. Error in law, occurring at the trial, and excepted to by the party making the application.

8 M. 9 (26): 16 M. 530.

§ 254. (SEC. 236.) Motion, how made-case-bill of exceptions-judge's or stenographer's minutes. When the application is made for a cause mentioned in the fourth, fifth and seventh subdivisions of the last section, it is made either upon a bill of exceptions or a statement of the case, prepared as prescribed in the next section; for any other cause, it is made upon affidavit: provided, however, that the judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes, or upon the minutes of the stenographic reporter where there is such a reporter, to set aside a verdict and grant a new trial, upon exceptions, or for insufficient evidence, or for excessive damages; but such motions, in actions hereafter tried, if heard upon the minutes, can only be heard at the same term or court at which the trial is heard. When such motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had: and provided, if, during the trial, any exception is taken to the ruling of the court, such exception may be forth with taken and reduced to writing, and allowed and signed by the judge, together with so much of the testimony or charge as to make the ruling and exception intelligible, which shall be made a part of the record, so as to obviate a case or other bill of exception; and on appeal the court shall not infer that any other evidence was introduced to obviate the exceptions. (As amended 1875, c. 60, § 1.)

4 M. 325 (422); 6 M. 394 (558); 8 M. 9 (26).

§ 255. (SEC. 237.) Bill of exceptions or case, how prepared and settled. The party preparing a bill of exceptions or case shall, within twenty days after the trial, serve it upon the adverse party, who may, within ten days after such service, propose amendments thereto; and within fifteen days after service of such amendments, the same, with the amendments proposed thereto, shall be presented to the judge or referee who tried the cause, for allowance or settlement

and signature, upon a notice of five days; if not presented within the time aforesaid, or such further time as may be stipulated or granted, the same shall be deemed abandoned: provided, that whenever the judge who tried the cause shall die, or become incapable from acting from sickness or other cause, before a bill of exceptions is allowed or case made, or shall depart from and remain without the state at the time limited for the same allowance or settlement, the said bill may be allowed, or case settled, by or before the judge of an adjoining judicial district in which the action is pending; or in case a referee shall so die, or become incapacitated, or remain absent, as herein set forth, such bill may be allowed, or case settled, by the judge of the district court in which such action is pending; and, in either case, such allowance or settlement shall be made upon the files in the cause, the minutes of the judge or referee, if attainable, and upon such proof of what transpired at the trial as may be presented by affidavit on behalf of the parties to the action, with like effect in all respects as if such bill was allowed, or case settled, by the judge or referee who tried the cause. The case or bill, being examined, and found or made conformable to the truth, shall be allowed and signed by the judge, referee, or other officer acting instead of such judge or referee, as provided herein. (As amended 1870, c. 74, § 1.)

4 M. 286 (379): 18 M. 79; 19 M. 107.

TITLE 21.

GENERAL PROVISIONS.

$256. (SEC. 238.) Rate of damages recoverable. Whenever damages are recoverable, the plaintiff may claim and recover any rate of damages to which he may be entitled for the cause of action established.

As to treble damages in certain cases, see post, § 269; and c. 75, § 47.

$257. (SEC. 239.) Requests for instructions to jury, etc. Any party may, and, if required by the court, shall, when the evidence is closed, submit, in distinct and concise propositions, the conclusions of fact which he claims 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; but in either case, they shall be entered, with any exceptions that may be taken, if either party requires it.

§ 258. (SEC. 240.) Trials by court or referees. The provisions of this chapter respecting trials by jury apply, so far as they are in their nature applicable, to trials by the court or referees.

$259. (SEC. 241.) Offer of judgment-proceedings-costs. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, to the effect therein specified, with costs. If the plaintiff accepts the offer, and gives notice thereof, within ten days, he may file the offer, with an affidavit of notice of acceptance, and the clerk shall thereupon enter judgment accordingly; if the notice of acceptance is not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs, but must pay costs to the defendant.

12 M. 186; 23 M. 61, 71.

*$260. Tender in actions for torts. When, in an action to recover damages for the commission of a tort, the defendant shall, at any time before the trial of such action, tender to the plaintiff a sum of money as damages or compensation for such tort, and, if such tender be made after the commencement of the action, in addition to such tender for damages or compensation, he shall also tender the costs and disbursements of the plaintiff then accrued, and the

plaintiff in such action shall not recover a greater sum than the amount so tendered, the plaintiff shall recover no costs or disbursements, but shall pay the defendant's costs and disbursements. The fact of such tender having been made shall not be pleaded, nor given in evidence to the court or jury. (1877, c. 119, § 1.)

*§ 261. Same-award of costs. In all such actions, when such tender shall be made, and the plaintiff fails to recover a greater sum than the amount of such tender, if the amount of such recovery, and the costs and disbursements accrued and tendered, exceed the amount of the defendant's costs and disbursements, the court shall enter judgment against the defendant for such excess. If the amount of the defendant's costs and disbursements exceed the amount recovered by the plaintiff, and his costs and disbursements accrued and tendered, the court shall enter judgment against the plaintiff for such excess. (Id. 2.) § 262. (SEC. 242.) Dismissal of action. The action may be dismissed, without a final determination of its merits, in the following cases;

First. By the plaintiff, at any time before trial, if a provisional remedy has not been allowed, or counterclaim made, or affirmative relief demanded in the answer.

1 M. 153 (179); 14 M. 491: 22 M. 92.

Second. By either party, with the written consent of the other; or by the court, upon the application of either party, after notice to the other, and sufficient cause shown, at any time before the trial;

2 M. 37 (50); 6 M. 386 (550), 406 (572).

Third. By the court, where, upon the trial, and before the final submission of the case, the plaintiff abandons it, or fails to substantiate or establish his claim, or cause of action, or right to recover;

20 M. 170.

Fourth. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal;

Fifth. By the court, on the application of some of the defendants, when there are others whom the plaintiff fails to prosecute with diligence.

All other modes of dismissing an action, by nonsuit or otherwise, are abolished. The dismissal mentioned in the first two subdivisions is made by an entry in the clerk's register, and a notice served on the adverse party; judgment may thereupon be entered accordingly. (As amended 1878, c. 22, § i.)

14 M. 491; 20 M. 408.

§ 263. (SEC. 243.) Judgment on the merits. In every case, other than those mentioned in the last section, the judgment shall be rendered on the merits.

§ 264. (SEC. 244.) Judgment as between several parties. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.

22 M. 1.

$265. (SEC. 245.) Judgment as against one or more of several defendants. 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, whenever a several judgment is proper.

1 M. 81 (102).

*§ 266. Judgment against defendants sued jointly with others. Whenever two or more persons are sued as joint defendants, and on the trial the plaintiff fails to prove a joint cause of action against all, but proves a cause of action against one or more of the defendants, judgment may be rendered against him or them against whom the cause of action is proved. (1873, c. 67, § 1.)

22 M. 540.

§ 267. (SEC. 246.) Measure of relief to be granted plaintiff. The relief granted to the plaintiff, if there is no answer, cannot exceed that which he has demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint, and embraced within the issue.

9 M. 93 (103)