CHAPTER II. OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A PART OF THE ACTION. SECTION 1220. Defendant may serve offer to compromise, and the proceedings thereon. 1221. Defendant may offer to liquidate damages conditionally. 1222. If plaintiff accept or refuse, the effect thereof. § 1220. 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, or to the effect therein specified. If the plaintiff accept the offer, and give notice therof, within ten days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and can not be given in evidence, and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs, from the time of the offer. Amended Code, § 385, extended so as to embrace every action, instead of confining it to an action arising on contract. § 1221. In an action for the recovery of money only, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fail in his defence, the amount of the recovery be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial have a verdict, the amount must be assessed accordingly. Amended Code, § 386, extended. § 1222. If the plaintiff do not accept the offer, he must prove the amount to be recovered, as if the offer had not been made, and cannot be permitted to give it in evidence. And if the amount assessed in his favor do not exceed the sum mentioned in the offer, the defendant may recover his expenses, incurred in consequence of any necessary preparation or defence in respect to the question of amount. Such expense must be ascertained at the trial. Amended Code, § 387. CHAPTER III. ADMISSION OR INSPECTION OF WRITINGS. SECTION 1223. A party may be required to admit a paper to be genuine, or pay expense of proving it. 1224. A party may demand inspection and copy of a paper. § 1223. Either party may exhibit to the other, or to his attorney, at any time before the trial, any document or paper, material to the action, and request an admission in writing of its genuineness. If the adverse party or his attorney fail to give the admission, within four days after the request, and if the party exhibiting the document or paper, be afterwards put to expense, in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense to be ascertained at the trial, must be paid by the party refusing the admission; unless it appear to the satisfaction of the court, that there were good reasons for the refusal. Amended Code, § 388. § 1224. The court before which an action is pending, or a judge thereof, or if the action be in the supreme court, a county judge, may order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any book, document or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. If compliance with the order be refused, the court may exclude the book, document or paper from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume it to be such as he alleges it to be; and the court may also punish the party refusing. This section is not to be construed to prevent a party from compelling another to produce books, papers, or documents, when he is examined as a witness. Amended Code, § 388, modified. CHAPTER IV. MOTIONS AND ORDERS. SECTION 1225. An order, defined. 1226. A motion, defined. 1227. Motions, how made. 1228. Motions to be made in the district, or adjoining county. 1229. When notice is necessary, it must be served eight days before hearing. 1230. In actions in supreme court county judge may act. 1233. On motion, witness may be examined orally. 1234. When answer admits part of claim, court may order it satisfied. § 1225. Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. Amended Code, §400. § 1226. An application for an order is a motion. Amended Code, § 401. § 1227. All motions may be made to the court at a special term, except upon appeals. Motions may likewise be made to a judge out of court, as provided in othe parts of this code. Original Code, § 359, modified. § 1228. Motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that where the action is triable in the first judicial district, the motion must be made therein. Orders made out of court, without notice, may be made by any judge of the court, in any part of the state; and if the action be in the supreme court they may also be made by a county judge of the county where the action is triable, except to stay proceedings after a verdict. No order to stay proceedings for a longer time than twenty days can be granted by a judge out of court, except upon previous notice to the adverse party. Original Code, § 361. § 1229. When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time. Amended Code, § 402. § 1230. In an action in the supreme court, a county judge, in addition to the powers conferred upon him by this code, may exercise, within his county, the powers of a judge of the supreme court out of court as provided in section 222. And in all cases where an order is made by a county judge, it may be reviewed in the same manner, as if it had been made by a judge of the supreme court. Amended Code, § 403. § 1231. When a notice of a motion is given, or an order to show cause provides for a motion, before a judge out of court, and at the time fixed for the motion, he is unable to hear it, the same may be transferred, by his order, to some other judge, before whom the motion might originally have been made. Amended Code, § 404. § 1232. Whenever an order for the payment of a sum of money is made by a court pursuant to a provision of this code, the same may be enforced by execution, in the same manner, as if it were a judgment, except that the person cannot be arrested unless specially directed in the order, nor can real property be sold thereon, except in the cases where the same is by law a charge upon real property. New. § 1233. Upon a motion, any person present in court, whose affidavit or deposition would be admissable thereupon, may be orally examined. New. |