« PreviousContinue »
to te sixty tays.
Procerlings wbure no
court for the sale of the real estate described in such mortgage, or of so much thereof as may be necessary to satisfy said judgment, interest, cost and expenses of sale. The sale of such premises shall be made by the sheriff under, ond by virtue of such order, and be advertised, proceeded in, and made in all respects in conformity with the law for the sale of real estate on execution; and
such sale shall have the same eliect as the sale of morigaged prem. T'une for de- ises on forclosures of morgiges by advertisement, pursuant to the demption in such cases statute in such cases made and provided, except that the time of re
demption of the mortgaged premises shall be sixty days and no longer.
Sec. 65. If a mortgagor against whom judgment is rendered 15 Stay is put provided for in the preceding sections, does not enter bill for the demption in stay of execution, the plaintifi'ony in like manner, at his election,
take out an execution against such defendant, or he may have an order for the sale of the nortgaged premises as above provided, or of so much thereof as may be necessary to satisfy such judgment, with the interest and costs. On a sale of mortgaged premises, when 10 bail has been put in for the stay of execution, the mortgagor or party in interest in such premises. shall have the same length of tiire 10 redeem the mortgaged premises that is allowed by law in case of sales under foreclosure by advertisement.
Sec. 66. Il' in any case a party plaintiff, in a judgment founded
upon a mortgnge, shall elect to iake execution against the delend. satisfied and ant and his bail, and such execution shall be returned by the officer proceedings
10 which the same shall have been delivered, unsatisfied in whole or
mined by a county court, but in all cases of judgment rendered by into the Ct. such court, in any civil suit, either party thinking himself aggrieved
or injured by such judgment, or by any opinion or direction of the
Order for sale after execution returu'd un
Removal of causes by certiorari
Affidavit to be presented to circuit
cuit court comm'r for
Bond to be
court, may remove the cause by bill of exceptions, certiorari or writ of error, into the circuit court, for the same county in which such judgment was rendered.
Sec. 6s. The party intending to apply for such certiorari shall give to the judge of the county court rendering the judgment, within intention to ten days after the rendition of the same, a notice in writing of the hide and intention to remove the case to the circuit court, and shall within
thereupon. the same time make or cause to be made an affidavit setting forth the substance of the testimony and the proceedings in the county court and the grounds upon which an allegation of erroris founded.
Sec. 69. Such affidavit shall within thirty days after the rendition of the judgment, be presented to the circuit judge or circuit court commmissioner of the proper county, and if he shall be satisfied that jude coureire an error affecting the merits of the controversy has been committed allowance by the court or jary in the proceedings, he shall allow the certiorari by endorsing his allowance thereon.
Sec. 70. The party thus obtaining a certiorari shall execute 10 the opposite party, a bond with one or more sufficient sureties to given by be approved by the circuit judge or circuit court commissioner, in a liorari. penalty double the amount of judgment for debt, damages and costs, conditioned to prosecute such certiorari to effect, and abide the judg. ment of the circuit court therein and pay all debts, damages and costs that may be awarded against him, which bond need not be executed by the party procuring certiorari, if executed by two or more sureties satisfactory to the officer allowing the certiorari.
Sec. 71. The affidavit required by section sixty-eight of this act Filing of arshall within ten days alter the allowance of the certiorari, be filed in the office of the clerk of said circuit court, and thereupon the suid clerk shall forth with issue a writ of certiorari in the common forin heretofore in use, as near as may be.
Sec. 72. Such writ of certiorari shall within thirty days after the date thereof, or within such further time as the circuit judge certiorari & or officer allowing the same, shall in such allowance direct, be of. served upon the judge by whom the judgment was rendered, together. with the bond given and a copy of the affidavit on which the certiorari was allowed; and the sum of eight cents per folio shall be paid to the said judge for his fees for making a return to the writ, and no writ of of certiorari shall be of any effect, until all the pre
fidavit and issue of writ.
ceding requisitions shall have been fully complied with; and if the certiorari, bond and affidavit shall be served upon the judge before execution issued upon the judgment, it shall stay the issuing thereof; and is the execution shall have been issued, the court issuing it shall give the party a certificate of the issuing and service of the certiorari, which being served upon the officer having the execution shall suspend the same.
Sec. 73. The county judge, before the return day of such cerReturns of county tiorari, or within ten days after the service thereof, shall make rejudge.
turn thereto in writing and file the same; in which return he shall truly and fully answer to all the facts set forth in the copy of the affidavit on which the certiorari was allowed, and shall cause the certiorari, bord and copy of the affidavit and his return thereio, to be attached together and filed in the office of the clerk of the circuit court of his county.
Sec. 74. The circuit court may compel such judge to make or Circuitcourt may compel amend such return by rule, order or attachment, as the case may
Sec. 75. When such return shall be filed in the office of the How argument mây, clerk of the circuit court, the cause may be brought on to argu
ment at the next term of the circuit court thereafter, without any assignment or joinder in error, unless there be an allegation of error in fact, and without furnishing any other copy or copies of the affidavit or certiorari, and return to the court or the opposite party, than those filed with the clerk.
Sec. 76. The circuit court shall proceed in all cases of bills Judgment of circuit of exceptions, certiorari and writs of error, to give judgment in
the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the county court, not affecting the merits, and may affirm or reverse the judgment of the county court, in whole or in part, or give such other judgment as justice shall require, and may in its discretion remand the cause to the county court and order a new trial. In case of a remand and order for a new trial the county court shall proceed to try such cause the same as in other cases.
Sec. 77. If the judgment be affirmed, costs shall be awarded to the defendant in error; if reversed, costs shall be awarded to the plaintiff in error, unless in such judgment a new (rial be ordered,
Oosts OR judgments in such cases,
tution to be awarded by circuit
in which case the costs in such reversal shall be in the discretion of the court; and if judgment be affirmed in part, the costs may be awarded as to the court shall seem just.
Sec. 78. No judgment in a county court shall be reversed in Judgments whole merely for the omission or misrecital of an oath, nor on ac- courts not count of any fees having been improperly allowed by the court, for certain
onissions, nor on account of any informality or insufficiency of any bond &c. given by the party bringing the certiorari, provided another bond to be approved by the court shall be given within such time as the court shall direct.
Sec. 79. If a judgment in the county court be collected and af When restiterwards reversed, the circuit court shall award restitution of the amount so collected with seven per cent interest from the time of court. such collection, if the party claiming the award, present to the court satisfactory evidence of the fact of such collection having been so made at any time before judgment is rendered in the circuit court, and issue execution for the collection of the same.
Of Cosis. Sec. 80. So much of the provisions of chapter 149, of the re- Costs. vised statutes of 1846, as relates to costs and the recovery thereof in couris of law, shall be applicable to all civil actions commenced in the county courts, except as hereinbefore provided, and except also in cases of appeal from justices courts.
Sec. 81. Either party in the county court, wishing the taxation of cosis, may give forty-eight hours' notice to the other party, of oosts. said laxation; and costs in the county courts may be taxed by the clerk or the circuit court commissioner.
Of Crimes, Misdemeanors, &c., and Proceedings therein. Sec. 82. The county shall not be chargeble to the sheriff for any services in attending the county court, except in criminal cases, chargeaunless the judge shall enter an order in the journal of the court re-vices of quiring the attendance of such sheriff.
Sec. 83. Whenever, in the opinion of the judge of the county court, the prosecuting attorney and county elerk, or in the opinion for grand juof a majority of them, it shall be proper to have a grand jury, an eatered. order to that effect shall be entered in the journal of said court, which order shall specify the time at which such grand jury shall
tu be tricd in
he tried in Circuit couri-pro
be returned in said court. Upon such order being made, the clerk shall draw from the grand jury box the names of twenty-three per. sons to serve as grand jurors. Hereafter no grand jury shall be
summoned in the circuit court. Indictinents Sec. 84. All indictments found by the grand jury in any county Co. courts, court shall be tried in such court, unless the person indicted shall in son elect to writing, filed with the clerk, at the time he may be required to
plead, elect to have the same tried in the circuit court; in which case reetings in the clerk shall make an entry in his journal of such election, and
shall transmit the indictment and a copy of the record of the proceedings of [lo] the circuit court, which shall thereafter possess said cause, with full power to try or otherwise dispose of the same, and the defendant shall stand committed, or recognize, with sureties, as the case may be, for his apppearance on the first day of the nest succeeding term, to the circuit court for said county. And a petit jury shall be empanneled and sworn for the trial of said causes, in the same manner as is now provided in chapter 103, of the revised statutes of 1846 for the trial of criminal causes.
Sec. 85. Whenever after the session of a grand jury, it shall be summoned. deemed proper by the county judge to have a petit jury summoned.
he shall cause an order theresor to be entered upon the journals of the court, which order shall specify the number of petit jurors, and which shall not be less than twelve, nor more than twenty-four, and the time at which said jury is to be returned. Upon such order being made, the clerk shall draw from the petit jury box, the names of persons equal to the number mentioned in the order, who shall be summoned in the manner now required by law. In the trial in the county court of criminal causes the mode of proceeding shall be tho same as heretofore in practice in the circuit court in like ca. ses, as near as may be practicable. Hereafter no petit juron shall be summoned in the circuit court except in cases hereinbefore mentioned.
Sec. 86. Criminal cases may be continued by the court to the next regular term of the county court and recognizanze shall be taken for the appearance of the defendant on the day to which the cause is continued, and in case there shall be no jury then in attendance, a jury shall be obtained in the manner prescribed by the
jury to be
Continue ance of criminalca.