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577. Judgment paid to clerk; docket credited; transcript to other counties. The party against whom any judgment for the payment of money may be rendered, by any court of record, may pay the whole, or any part thereof, to the clerk of the court in which the same may have been rendered, at any time thereafter, although no execution may have issued on such judgment; and such payment of money shall be good and available to the party making the same, and the clerk shall enter the payment on the judgment docket of the court, and immediately forward a certificate thereof to the clerk of the superior court of each county, to whom a transcript of said judgment has been sent, and the clerk of such superior court shall enter the same on the judgment docket of such court and file the orginal with the judgment roll in the action.

Code, s. 438; R. C., c. 31, s. 127; 1823, c. 1212.

578. Clerk to pay money to party entitled. The clerk, to whom money shall be paid as aforesaid, shall pay the same to the party entitled to receive it, under the same rules and penalties as if the money had been paid into his office by virtue of an execution. Code, s. 439; R. C., c. 31, s. 128; 1823, c. 1212, s. 2.

579. Credits upon judgments. Where any payment has been made on any judgment docketed in the office of the clerk of the superior court, and no entry thereof has been made on the judgment docket, or where any docketed judgment appealed from has been reversed or modified on appeal and no entry thereof has been made on such docket, any person interested therein may move in the cause before the clerk, upon affidavit after notice to all persons interested, to have such credit, reversal or modification entered; and upon the hearing before the clerk he may hear affidavits, oral testimony, depositions and any other competent evidence, and shall render his judgment; from which any party may appeal in the same manner as in appeals in special proceedings. On the trial of any issue of fact on such appeal either party may demand a jury trial, which shall be had upon the evidence before the clerk, which he shall reduce to writing. On a final judgment ordering any such credit, reversal or modification, transcript thereof shall be sent by the clerk of the superior court to each county in which the original judgment has been docketed, and the clerk of such county shall enter the same on the judgment docket of his county opposite such judgment and file the transcript. No final process shall issue on any such judgment after affidavit filed in the cause until the motion for credit, reversal or modification shall have been finally disposed of.

1903, c. 558.

NOTE. For form of judgment for purchase-money of land, see subchapter Execution, s. 627.

For estoppel of judgment after amendment, see s. 508.

XXV. JUDGMENT CONFESSED.

.580. When and for what. A judgment by confession may be entered without action either in or out of term, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this subchapter.

Code, s. 570; C. C. P., s. 325.

581. Debtor to make verified statement. A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect:

1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor.

2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due.

3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same.

Code, s. 571; C. C. P., s. 326.

582. Judgment; costs; execution; when due by instalments. The statement may be filed with the clerk of the superior court of the county in which the defendant resides, or if he does not reside in the state, of some county in which he has property. The clerk shall indorse upon it and enter on his judgment docket a judgment of the court for the amount confessed, with three dollars costs, together with disbursements. The statement and affidavit, with the judgment indorsed, shall thenceforth become the judgment roll. Executions may be issued and enforced thereon in the same manner as upon judgments in other cases in such courts. When the debt for which the judgment is recovered is not all due, or is payable in instalments, and the instalments are not all due, the execution may issue upon such judgment for the collection of such instalments as have become due, and shall be in the usual form; but shall have indorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judgment, with interest and costs, which amount shall be stated, with interest. thereon, and costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the instalments thereafter to become due; and whenever any further instalment becomes due, execution may, in like manner, be issued for the collection and enforcement of the same. Code, s. 572; C. C. P., s. 327.

XXVI. APPEAL.

583. Writs of error abolished. Writs of error in civil actions are abolished; and the only mode of reviewing a judgment, or order, in civil action, shall be that prescribed by this chapter.

Code, s. 544; C. C. P., s. 296.

584. Certiorari, recordari and supersedeas. Writs of certiorari, recordari and supersedeas are hereby authorized as heretofore in use. The writs of certiorari and recordari, when used as substitutes for an appeal, may issue when ordered upon the applicant filing a written undertaking for the costs only; but the supersedeas, to suspend execution, shall not issue until an undertaking is filed, or a deposit made to secure the judgment sought to be vacated, as in cases of appeal where the execution is stayed.

Code, s. 545; 1874-5, c. 109.

585. Who may appeal. Any party aggrieved may appeal in the cases prescribed in this chapter.

Code, s. 547; C. C. P., s. 298.

586. From clerk to judge. Appeals shall lie to the judge of the superior court having jurisdiction, either in term time or vacation, from judgments of the clerk of the superior court in all matters of law. In case of such transfer or appeal neither party shall be required to give an undertaking for costs; and the clerk shall transmit, on such transfer or appeal, to the superior court, or to the judge thereof, the pleadings, or other papers, on which the issues of fact or of law arise. An appeal must be taken within ten days after the entry of the order or judgment of the clerk. But an appeal can only be taken by a party aggrieved, who appeared and moved for, or opposed the order or judgment appealed from, or who, being entitled to be heard thereon, had no opportunity of being heard, which fact may be shown by affidavit or other proof.

Code, s. 116.

587. In what cases taken. An appeal may be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action. or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial.

Code, s. 548; C. C. P., s. 299; 1818, c. 962, s. 4.

Note. For appeal in creditors' proceeding against personal representative,

see s. 119.

588. From judge in special proceedings. Any party, within ten days after notice of such judgment, may appeal to the supreme court of the state from such judgment, upon any matter of law or legal inference therein, under the regulations provided for appeals in other cases. But execution shall not be suspended until the undertakings required by law shall have been given. If issues, both of law and of fact, or issues of fact only, are raised before the clerk of the superior court, he shall transfer the case to the civil issue docket for trial of the issues at the ensuing term of the superior court.

Code, s. 256; C. C. P., s. 115.

589. Interlocutory orders reviewed on appeal from judgment. Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.

Code, s. 562; C. C. P., s. 313.

590. When taken; execution stayed, when. The appeal must be taken from a judgment rendered out of term within ten days after notice thereof, and from a judgment rendered in term within ten days after its rendition, unless the record shows an appeal taken at the trial, which shall be sufficient, but execution shall not be suspended until the giving by the appellant of the undertakings hereinafter required.

Code, s. 549; 1889, c. 161; C. C. P., s. 300.

591. Entered on docket; case on appeal, how stated and settled; penalty on judge failing to settle. Within the time prescribed in the preceding section, the appellant shall cause his appeal to be entered by the clerk on the judgment docket, and notice thereof to be given to the adverse party unless the record shows an appeal taken or prayed at the trial, which shall be sufficient. He shall cause to be prepared a concise statement of the case, embodying the instructions of the judge as signed by him, if there be an exception thereto, and the requests of the counsel of the parties for instructions if there be any exception on account of the granting or withholding thereof, and stating separately in articles numbered, the errors alleged. A copy of this statement shall be served on the respondent within fifteen days from the entry of the appeal taken; within ten days after such service the respondent shall return the copy with his approval or specific amendments indorsed or attached; if the case be approved by the respondent, it shall be filed with the clerk as a part of the record; if not returned with objections within the time prescribed, it shall be deemed approved; if returned with objec

tions as prescribed, the appellant shall immediately request the judge to fix a time and place for settling the case before him; and the judge shall forthwith notify the attorneys of the parties to appear before him for that purpose at a certain time and place, within the judicial district, which time shall not be more than twenty days from the receipt of such request; and at the time and place stated, the judge shall settle and sign the case, and deliver a copy to the attorney of each party, or if the attorneys be not present, file a copy in the office of the clerk of the court: Provided, that if the judge shall have left the district before the notice of disagreement, he may settle the case without returning to the district. In settling the case, the written instructions signed by the judge, and the written requests for instructions signed by the counsel, and the written exceptions shall be deemed conclusive as to what such instructions, requests and exceptions were. If a copy of the case settled was delivered to the appellant, he shall within five days thereafter file the same with the clerk, and in case he fails to do so, the respondent may file his copy. The judge shall settle the case on appeal within sixty days after the termination of a special term or after the courts of the district shall have ended, and if the judge in the meantime shall have gone out of office, he shall settle the case as if he were still in office, and any judge failing to comply with this section shall be liable to a penalty of five hundred dollars, for the use of any person who will sue for the same.

Code, s. 550; 1889, c. 161; C. C. P., s. 301; 1905, c. 448.

592. Clerk to prepare transcript. The clerk on receiving a copy of the case settled, as required in the preceding section, shall make a copy of the judgment roll and of the case, and within twenty days transmit the same, duly certified to the clerk of the supreme court. The clerk, except in cases where parties are allowed to appeal without giving an undertaking on appeal, shall not be required to make the copy of the record in the case for the supreme court until the appellant shall have given the undertaking on appeal or made the deposit required.

Code, s. 551; 1889, c. 135; C. C. P., s. 302.

593. Undertaking on appeal; filed in supreme court, when. To render an appeal effectual for any purpose in any civil cause or special proceeding, a written undertaking must be executed on the part of the appellant, with good and sufficient surety, in such sum as may be ordered by the court, not to exceed the sum of two hundred and fifty dollars, to the effect that the appellant will pay all costs which may be awarded against him on the appeal; or such sum as may be ordered by the court must be deposited with the clerk by

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