the plaintiff will pay all costs which have accrued or may accrue on such proceedings in error, together with the amount of any judgment that may be rendered against such plaintiff in error, either on the further trial of the case, after the judgment of the court below shall have been set aside or reversed, or upon and after the affirmance thereof in the district court. The person entitled to such proceedings shall have the same time for prosecuting the same, before he is barred, as is provided in the last section, unless the said judgment has been paid off or satisfied prior to the commencement of such proceedings.

SEC. 588. Execution of the judgment or final order of any judicial tribunal, other than those enumerated in this title, may be stayed on such terms as may be prescribed by the court or a judge thereof, in which the proceedings are pending.

SEC. 589. When a judgment or final order shall be reversed, either in whole or in part, in the supreme court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment; and the court reversing such judgment or final order shall not issue execution in causes that are removed before them on error, on which they pronounced judgment as aforesaid, but shall send a special mandate to the court below as the case may require, to award execution thereupon; and such court to which such special mandate is sent, shall proceed in such cases in the same manner as if such judgment or final order had been rendered therein. And on motion, and good cause shown, it may suspend any execution made returnable before it by order of the supreme court, in the same manner as if such execution had been issued from its own court, but such power shall not extend further than to stay proceedings until the matter can be further heard by the supreme

court.

SEC. 590. When a judgment or final order is reversed, the plaintiff in error shall recover his costs, and when

reversed in part, and affirmed in part, costs shall be equally divided between the parties.

SEC. 591. When a judgment or final order shall be affirmed in the supreme court, the said court shall also render judgment against the plaintiff in error, for five per cent. upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes, that there was reasonable ground for the proceeding in error.

SEC. 592. A mistake, neglect or omission of the clerk shall not be a ground of error, until the same has been presented and acted upon in the court in which the mistake, neglect or omission occurred.

Five per cent.

Mistake.

SEC. 593. Rendering judgment before the action stood Clerical error. for trial, according to the provisions of this code, shall be deemed a clerical error.

SEC. 594. Writs of error shall be allowed to reverse, vacate or modify judgments or final orders in civil cases.

SEC. 595. If the judgment of a justice of the peace, taken on error as herein provided, to the district court, bo affirmed, it shall be the duty of such court to render judgment against the plaintiff in error, for costs of the suit, and to award execution therefor, and the court shall thereupon order his clerk to certify its decision in the premises, to the justice, that the judgment affirmed may be enforced, as if such proceedings in error had not been taken; or such court may award execution to carry into effect the judgment of such justice, in the same manner as if such judgment had been rendered in the district court.

Reversal In civil cases.

Certificate

SEC. 596. When the proceedings of a justice of the peace Judgment. are taken on error to the district court, in manner aforesaid, and the judgment of such justice shall be reversed or set aside, the court shall render judgment of reversal, and for the costs that have accrued in obtaining such reversal in favor of the plaintiff in error, and award execution therefor; and the cause shall be retained by the court for trial and final judgment, as in cases of appeal.

Modificarion

by dustrict court.

Petition.

Proceedings to Reverse, Vacate or Modify Judgments and

orders in the Courts in which they are rendered.

Sec. 597. A district court shall have power to vacate or modify its own judgments or orders, after the term at which such judgment or order is made.

First, By granting a new trial of the cause, within the time and in the manner prescribed in section three hundred and fifteen.

Second, By a new trial granted in proceedings against defendants, constructively summoned, as provided in section seventy-six.

Third, For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.

Fourth, For fraud practiced by the successful party in obtaining the judgment or order.

Fifth, For erroneous proceedings against an infant, married woman, or person of unsound mind, when the condition of such defendant does not appear in the record, ner the error in the proceedings.

Sixth, For the death of one of the parties before the judgment in the action.

Seventh, For unavoidable casualty or misfortune preventing the party from prosecuting or defending.

Eighth, For errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in section four hundred and forty.

Ninth, For taking judgments upon warrants of attorney, for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.

SEC. 598. The proceedings to vacate or modify the judgment or order on the grounds mentioned in subdivisions four, five, six, seven, eight and nine of the last preceding section, shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such petition, a summons shall issue and be

served as in the commencement of an action; Provided,

Such summons shall not issue in any case in which there is upon the minutes of the court, or among the files of the case, a waiver of error by the party or his attorney, unless the court or judge thereof, shall indorse upon the petition permission to issue such summons.

SEC. 599. The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorneys in the action. The motion to vacate a judgment because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term.

SEC. 600. The court may first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action.

SEC. 601. A judgment shall not be vacated on motion or petition, until it is adjudged that there is a valid defense to the action in which the judgment is rendered, or, if the plaintiff seek its vacation, that there is a valid cause of action; and where a judgment is modified, all liens and securities obtained under it, shall be preserved to the modified judgment.

SEC. 602. The party seeking to vacate or modify a judgment or order, may obtain an injunction suspending proceedings on the whole or a part thereof, which injunction may be granted by the court or any judge thereof, upon its being rendered probable, by affidavit or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified.

SEC. 603. When the judgment was rendered before the action stood for trial, the suspension may be granted as provided in the last section, although no valid defense to the action is shown; and the court shall make such orders concerning the executions to be issued on the judgment as shall give to the defendant the same rights of delay he

Proviso.

Reasonable no

tice.

Docialon.

Valid defense

Injunction.

Suspension.

Limitation.

Supreme court

Provisions.

Non-rootlenba.

would have had if the judgment had been rendered at the proper time.

Suc. 604. Proceedings to vacate or modify a judgment or order for the causes mentioned in. subdivisions four, five and sever, of section five hundred and ninety-seven, must be commenced within two years after the judgment was rendered, or order made, unless the party entitled thereto, be an infant, married woman or person of unsound mind, and then within two years after the removal of such disability. Proceedings for the causes mentioned in subdivisions three and six of the same section, shall be within three years, and subdivision nine within one year after the defendant has otice of the judgment.

Sec. 605. The provisions of this title subsequent to section five hundred and ninety-six shall apply to the supreme court and probate court, so far as the same may be applicable to the judgments or final orders of such courts. The parties shall be limited to the same time in which to commence proceedings, and in estimating time, the probate court shall, for this purpose be considered as holding, in each year, three terms, of four months each, the first commencing on the first day of January of each year.

SEC. 606. Cases pending in appellate courts on writs of error or otherwise, when this code takes effect, shall be conducted to final judgment, as if it had not been adopted, and the liens of judgments and decrces rendered when it takes effect shall be preserved.

TITLE XXV.

Costs.

SEC. 607. In all cases in which the plaintiff is a nonresident of the county in which the action is to be brought, before commencing such action, the plaintiff must furnish a sufficient security for the costs. The surety must be a resident of the county where the action is to be brought, and approved by the clerk. IIis obligation shall be complete, simply by indorsing the summons, or signing his name