of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel re-payment from the principal. In such case the person so paying or contributing is entitled to the benefit of the judgment to enforce contribution or re-payment, if, within ten days after his payment, he file with the clerk of the court where judgment was rendered, notice of his payment and claim to contribution or re-payment. Upon a filing of such notice, the clerk must make an entry thereof in the margin of the docket. CHAPTER II.-Proceedings Supplementary to Execution. SEC. 338. When an execution against property of the judgment debtor, or any of several debtors in the same judgment, issued to the sheriff of the county where he resides, or, if he does not reside in this territory, to the sheriff of the county where the judgment roll is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, shall be entitled to an order from the judge of the court, or probate judge, requiring such judgment debtor to appear and answer concerning his property, before such judge, or a referee appointed by him, at a time and place specified in the order; but no judgment debtor shall be required to attend before a judge, or referee, out of the county in which he resides, when proceedings are taken under the provisions of this chapter. SEC. 339. After issuing an execution against property, and upon proof by affidavit by a party or otherwise, to the satisfaction of the court, or a judge thereof, that any judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear, at a specified time and place, before such judge or referee appointed by him, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the Any person judgment debtor toward the satisfaction of the judgment as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor absconding, order the sheriff to arrest the debtor, and bring him before such judge. Upon being brought before the judge he may be ordered to enter into an undertaking, with surety, that he will attend, from time to time, before the judge or referee, as shall be directed, during the pendency of the proceedings, and until the final determination thereof, and will not, in the meantime, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison. SEC. 340. After the issuing of an execution against property, and before its return, any person indebted to indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to debt to sheriff satisfy the execution, and the sheriff's receipt is a sufficient discharge for the amount so paid. judgment debtor after execution issues may pay by judge of debts due, or SEC. 341. After the issuing or return of an execution against property of a judgment debtor, or any one of several debtors in the same judgment, and upon proof, by affidavit or otherwise, to the satisfaction of the judge, Investigation that any person or corporation has property of such property be judgment debtor, or is indebted to him in an amount judgment exceeding fifty dollars, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place, before him, or a referee appointed by him, and answer concerning the same. longing to debtor. The judge may also, by order, forbid a transfer or forbid trans- other disposition of the property of the judgment debtor Judge m a y fer of proper ty of judg not exempt from execution, and any interference there ment debtor. with. SEC. 342. Witnesses Witness may be required testify before the judge or referee, upon any proceeding to testify ununder this chapter, in the same manner as upon trial of an issue. SEC. 343. The judge or referee may order any prop"erty of the judgment debtor not exempt from execution, in the hands of such debtor, or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment; except, that the earnings of the debtor for his personal services, at any time within thirty days next preceding the order, shall not be so applied, when it shall be made to appear, by the debtor's affidavit or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor. der this chapter. Judge may ty applied on order proper execution. Procedure where an SEC. 344. If it appear that a person or corporation alleged to have property of the judgment debtor, or indebted to him, claims an interest in the property adverse to him, or denies the debt, the court or judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation, for the recovery of such interest or debt. And other party the court or judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order may be modified or vacated by the judge granting the same, or the court in which the action is brought, at any time, upon such terms as may be just. SEC. 345. If any person, party, or witness disobey an order of the referee, properly made, in the proceeding before him, under this chapter, he may be punished by the court or judge ordering the reference for a contempt. TITLE IX.-ACTIONS IN PARTICULAR CASES. CHAPTER I.-Actions for the Foreclosure of Mortgages. SEC. 346. There shall be but one action for the recovery of any debt, or the enforcement of any rights, secured by mortgage upon real estate or personal prop claims property of judgment debtor. Disobedience ishment for. of order, pun Procedure to mortgages. erty, which action shall be in accordance with the provisions of this chapter. In actions for the foreclosure of mortgages, the court shall have the power, by its judgment, to direct a sale of the incumbered property (or as much as may be necessary), and the application of the proceeds of the sale to the payment of the costs of the ⚫ court, and expenses of the sale, and the amount due to the plaintiff; and if it appear from the sheriff's return that the proceeds are insufficient, and a balance still remains due, judgment shall be docketed for such balance against the defendant, or defendants, personally liaforeclose ble for the debt, and shall then become a lien on the real estate of such judgment debtor, as in other cases in which execution may be issued. No person holding a conveyance from or under the mortgagor, or of the property mortgaged, or having a lien thereon, which conveyance does not appear on record in the proper office at the time of the commencement of the action, need be made a party to such action; and the judgment therein rendered, and the proceedings therein had, shall be as conclusive against the party holding such unrecorded conveyance or lien, as if he had been made a party to said action, and shall, in all respects, have the same force and effect. Disposition of surplus moneys. falls due at SEC. 347. If there be surplus money remaining after payment of the amount due on the mortgage, lien, or incumbrance, with costs, the court may cause the same to be paid to the person entitled to it, and in the meantime may direct it to be deposited in court. SEC. 348. If the debt for which the mortgage, lien, or incumbrance is held be not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale shall cease; and afterwards, as When debt often as more becomes due for principal or interest, the different court may, on motion, order more to be sold. But if the property cannot be sold in portions without injury to the parties the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper. times. CHAPTER II.-Actions for Nuisance, Waste, and Wilful Nuisances de SEC. 349. Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought fined, and acby any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered. SEC. 350. If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for triple damages. SEC. 351. Any person who shall cut down or carry off any wood or underwood, tree or timber, or girdle or otherwise injure any tree or timber on the land of another person, or on the street or highway in front of any person's house, village or city lot, or cultivated grounds, or on the common or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, shall be liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor in a civil action in any court having jurisdiction. tions for. Waste-actions for. cutting or away timber. carrying Measure of damages un der last see tion. SEC. 352. Nothing in the last section shall authorize the recovery of more than the just value of the timber taken from uncultivated woodland for the repair of the public highway or bridge upon the land or adjoining it. SEC. 353. If a person recover damages for a forcible or unlawful entry in or upon, or detention of, any building or any cultivated real property, judgment may be forcible entry entered for three times the amount at which the actual damages are assessed. Damages on or detainer. |