plaintiff as to that portion of his demand disputed; and if, in the determination of any cause, the taking an account, proof of a fact, or the assessment of damages, is necessary, the court may take the account, hear the proof, or assess the damages, or may refer the case to a referee or master for such purpose, or direct the matter to be ascertained by a jury, as the case may require. [69 v. 44, ? 376; 51 v. 57, 2 598; 76 v. 78, ? 1; S. & C. 1130.]

Where a party takes judgment by default for a less sum than the amount due on his claim, he can not maintain an action to recover the remainder, 20 O. S. 315. Judgment on default may be taken for the part of the account admitted, and the case continued as to the remainder, 26 O. S. 537; but the section applies only where a part of the cause or causes of action is admitted and part denied, 37 O. S. 363; see 1 C. C. R. 290; and where plaintiff sues to recover the value of services rendered, and defendant admits the rendition of the services, but denies the value to be as great as claimed, and avers it does not exceed a certain specified amount, it is error to render a judgment in plaintiff's favor for such amount, and continue the cause for trial to determine the further value of such services, Id. Where defendant admits the debt and pleads a set-off, judgment may be taken for the difference, 34 O. S. 294. Judgment by default can not be taken against an infant, 8 O. 377; 10. S. 544; 17 Id. 484; it can not be taken before a case is placed on the trial docket, 34 O. S. 123, before the expiration of the day named in the summons for answer, Id. Judgment by default without proof is erroneous in an action to rescind a contract and recover back purchase money, 1 Clev. R. 90; in an action for a demand not founded on contract, express or implied, where the averments of the petition are admitted by demurrer, 2 C. C. R. 143; but judgment by default without proof in an action on an account is not erroneous, 25 O. S. 635. Judgment by default may be taken after appearance, T. 45, at a subsequent term, on demurrer sustained to an answer at a previous term, 3 Bull 894, 895. Default for answer may be set aside where a meritorious defense is shown on payment of costs by defendant, 1 H. 190; can not be set aside without leave, 2 Bull 97; nor at subsequent term, 2 H. 178; but the opening of a default is discretionary with the court, 1 Clev. R. 341; 2 Id. 97. Special demurrer can not be pleaded after default, T. 183. On default, plaintiff may waive jury and have court assess damages, 2 Clev. R. 114, 299. Right to jury, 22 O. S. 372.

CHAPTER III.

JUDGMENT BY CONFESSION.

A person

5321. Confession of judgment in person. indebted, or against whom a cause of 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; whereupon judg

ment shall be entered accordingly. [51 v. 57, 2 377; S. & C. 1052.]

5322. Pleadings in such action. The debt or cause of action shall be briefly stated in the judgment, or in a writing to be filed as pleadings in other actions. [51 v. 57, 2378; S. & C. 1053.]

225321, 5322 apply only to a proceeding wherein the debtor appears personally in court and confesses judgment, 35 O. S. 107.

25323. Enforcement of judgment. Release of errors. Such judgment shall authorize the same proceedings for its enforcement as judgments rendered in actions regularly brought and prosecuted; and the confession shall operate as a release of errors. [51 v. 57,2 379; S. & C. 1053.]

25324. Warrant of attorney to be produced and filed. An attorney who confesses judgment in any case shall, at the time of making such confession, produce the warrant of attorney for making the same to the court before which he makes the confession; and the original or a copy of the warrant shall be filed with the clerk of such court. [51 v. 57, ? 380; S. & C. 1053.]

This section does not dispense with a petition or its verification; but where the warrant of attorney, under which a confession of judgment is made, authorizes the waiving of process, and the release of all errors, and the judgment is rendered upon a good cause of action stated in a petition not properly verified, the defect in the verification on a proceeding in error must be deemed to have been waived, 31 O. S. 435, 436. A warrant of attorney to confess judgment must be strictly construed, and the authority conferred can not be exercised beyond the limits expressed in the instrument, 19 O. S. 536; 11 Bull 51; 2 C. C. R. 43. A warrant of attorney to confess judgment does not authorize such confession before the maturity of the note, 33 O. S. 236. A warrant of attorney to confess judgment against a principal and surety authorizes judgment against principal alone, 3 6. S. 445. It seems that a warrant of attorney may authorize judgment in favor of any holder of the note, 25 O. S. 340, 346; and on a sealed note, payable to bearer, judgment may be confessed in favor of the holder, 35 O. S. 141;"but in all the reported cases the power is expressly conferred to confess a judgment in favor of the legal holder or the holder," 2 C. C. R. 43, citing 25 O. S. 346; 35 O. S. 141. It was queried whether such warrant could be used for taking judgment in favor of the indorsee of the note, 11 O. S. 503; see 19 0.130; 19 0. S. 536; and held that it could not if the note was sealed, 19 O. S. 536. In 19 O. 130 it was held the warrant was not negotiable. That the warrant is not negotiable does not destroy the negotiability of the note, Id.; and the erasure of the power of attorney from the note does not invalidate the note, 3 O. S. 445. A warrant to confess judgment upon a debt due directly from the defendant to the plaintiff is not a collateral security merging the original debt, 18 O. 279. The taking of a judgment

upon a warrant of attorney without filing the original warrant, or a copy thereof, is an irregularity, for which the judgment may be set aside, 9 O. S. 505; see 1 C. C. R. 211; 11 0.417; 21 Bull 362.

? 5325. Warrant of attorney to confess judgment for person in custody. A warrant of attorney executed by a person in custody, to confess judgment in favor of the person at whose suit he is in custody, shall be of no force unless executed in the presence of an attorney expressly named by the person in custody, and signed by him as witness. [51 v. 57, 2381; S. & C. 1053.]

CHAPTER IV.

MANNER OF GIVING AND ENTERING JUDGMENT.

25326. Judgment to be entered in conformity to verdict. When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court order the case to be reserved for future argument or consideration. [51 v. 57, 382; S. & C. 1054.]

5327. Judgment on special verdict or case reserved. When the verdict is special, or when there is a special finding on particular questions of fact, or when the case is reserved, the court shall order what judgment shall be entered. [51 v. 57, 383; S. & C. 1054.]

? 5328. Judgment contrary to verdict. When, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party. [51 v. 57, § 384; S. & C. 1054.]

Judgment non obstante veredicto can only be given for a plaintiff. The remedy for a defendant is to have the judgment arrested, 2 O. S. 287. Under the code judgment must be entered for the defendant, notwithstanding the verdict against him, if the plaintiff's petition does not set forth a good cause of action, 16 O. S. 129. Where the only issue is upon the truth of immaterial matter, it is not error to render judgment upon the pleadings irrespective of the verdict of the jury, 22 O. S. 247. On motion for judgment for defendant, notwithstanding the verdict on the pleadings, the court can only look at the pleadings, 40 O. S. 113. A legal cause of action substantially set forth, although so inartificially stated as to be bad, if specially objected to by demurrer, is sufficient after verdict, and a judgment rendered thereon is good, 7 O. S. 270, 274; see 19 Bull 270. When defendant may have judgment.

? 5329. When a counter-claim or set-off, established at the trial, ex

ceeds the plaintiff's claim so established, judgment for the defendant must be given for the excess; or, when it appears that the defendant is entitled to any affirmative relief, judgment shall be given therefor. [51 v. 57, 2385; S. & C. 1054.]

41 O. S. 403, 408.

? 5330. Rights of minors reserved. It shall not be necessary to reserve in a judgment or order the right of a minor to show cause against it after attaining the age of majority; but in any case in which, but for this section, such reservation would have been proper, the minor may, within one year after arriving at the age of majority, show cause against such order or judgment. [83 v. 74; 51 v. 57, 2 386; S. & C. 1054.]

See 45 O. S. 93; 17 O. S. 484.

25331. Judgments must be entered on journal. All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. [51 v. 57, ? 387; S. & C. 1055.]

As an instrument of evidence, the journal is deemed one of the records of the court, 5 O. 485; 6 O. 34.

? 5332. Record to be made unless waived. The clerk shall make a complete record of every cause as soon as it is finally determined, unless such record, or some part thereof, be duly waived. [51 v. 57, ? 388; ́S. & C. 1056.]

? 5333. When record to be made up and signed. The clerk shall make up such record in each cause in the vacation next after the term at which the same was determined; and the presiding judge of the court shall, at the next term thereafter, subscribe the same. [51 v. 57, 2389; S. & C. 1056.]

Signature of presiding judge not essential to validity of record, 7 O. (Pt. 1) 212.

25334. What must go into the record. The records shall be made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; but if the items of an account, or the copies of papers attached to the pleadings, are voluminous, the court may order the record to be made by abbreviating the same, or inserting a pertinent description thereof, or

by omitting them entirely; and evidence must not be recorded. [51 v. 57, ? 390; S. & C. 1056.]

See 2 C. C. R. 152, 156; 7 O. (Pt. 1) 257, 258. What shall constitute the record of a case is regulated by statute, and any paper the statute authorizes to become part of the record may be made part thereof without an express order of the court to that effect, 27 O. S. 44. A reviewing court on error has no control of the records of the court below, and can not make any changes or corrections therein, Id. The orders, decrees, and minutes of the court of common pleas, in those cases in which no final record is made, or is required to be made, are legal evidence and matter of record, if the court was in the exercise of its legitimate power and authority, 6 O. 251, 253; but entries in dockets or calendars not required by law to be kept, and entries made by the judge on his docket, are not evidence of what they contain, but are the mere statements of the persons making them, 10 O. 198.

25335. Courts to cause records to be completed. When the judicial acts or other proceedings of any court have not been regularly brought up and recorded by the clerk thereof, such court shall cause the same to be made up and recorded within such time as it may direct; and when they are made up, and, upon examination, found to be correct, the presiding judge shall subscribe the same. [51 v. 57, 2 391; S. & C. 1057.]

25336. Transcribing records. Fees of clerk. A court, when it deems it necessary, may, by order on the journal, direct its clerk to transcribe any book in his office into a new volume, and the transcript so made shall be as valid as the original; and for such services the clerk shall receive six cents for each hundred words copied, to be paid out of the county treasury. [36 v. 15, 2; S. & C. 1281.]

25337. When complete records need not be made. ? 5332 shall not apply:

1. In criminal prosecutions, when the indictment has been quashed, or when the prosecuting attorney has entered a nolle prosequi on the indictment.

2. When the action has been dismissed without prejudice to a future action, as provided in ? 5314.

3. In all actions in which, in open court, at the term at which the final order or judgment is made, both parties declare their agreement that no record shall be made. [51 v. 57, 2 392; S. & C. 1057.]

5338. When record made upon payment therefor. When an action has been dismissed without prejudice to a future action, the clerk shall make a complete record