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and directing judgment as hereinafter stated; and the [plaintiff's] costs having been duly adjusted at dollars [for other recitals see Forms immediately following, and others therein referred to]: Now, on motion of A. T., attorney for [plaintiff], IT IS ADJUDGED, that [stating relief and following implicitly the directions in the decision].

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FORMS Nos. 1759-1776.-STATEMENTS SUITABLE TO BE INSERTED IN FOREGOING FORM.

[For various recitals applicable to a judgment after trial by the court, see also Forms 1565 and 1569–1571, and for others, some of which are appropriate to trial either by the court or by jury, see Forms 1704 to 1719.]

FORM No. 1759.

Voluntary submission of one who could not be sued.

And the defendant [name and addition as thus:] W. X., as assignee in bankruptcy of said Y. Z., having voluntarily appeared and duly submitted himself to the jurisdiction of this court [and consented to the entry of the following judgment];

because avoided or immaterial by reason of other facts being found against him, it is better for plaintiff to state or recite in the judgment such of the findings of fact as support the judgment and leave those which favor his adversary to remain as they ought to simply as findings; for these are not properly an adjudication, although there are some authorities which have treated such findings as if they were. See Whiting v. United States Bk., 13 Pet. 6; Rule lxxxvi of U. S. Ct. Eq. Pr.; Jones' Fed. Rep. 144; Rice v. Rice, 53 Mich. 432; 19 N. W. Rep. 132; Jackson v. St. Paul Fire, etc., Co., 33 Hun, 60; Judge v. Booge, 47 Mo. 544; Seton on Decrees, 1 Am. Ed. 7. If, however, a party has prevailed upon one issue tendered, it is the duty of the trial judge to direct an adjudication in his favor to such extent, even though the adverse party is otherwise successful. Outwater v. Moore, 124 N. Y. 67.

44 The judgment must follow implicitly the decision. Brown . McKie, 185 N. Y. 303. A remedy for an error in the judgment in departing

from the decision in respect to the award of costs, may be had either by motion to conform it to the decision, or, especially where the decision is also wrong and is excepted to, by appeal. Brown v. McKie, supra; Rosa v. Jenkins, 31 Hun, 384.

45 If the judge has signed findings or an order for judgment directing specifically what provisions it shall contain, he need not sign the judg ment itself (Clapp v. Hawley, 97 N. Y. 610; De Laney v. Blizzard, 7 Hun, 66; California Southern R. Co. v. Southern Pac. R. Co., 67 Cal. 59, 7 Pac. Rep. 123), except where it is settled by him pursuant to direction in an interlocutory judgment. Code Civ. Pro., 1231. The practice is, however, to require the form of judgment to be submitted to the justice for his approval and settlement, and when the form of the judgment is settled by the judge, he usually signs or initials it, leaving a blank only for the costs, to be taxed, and inserted by the clerk, who then also signs the judgment.

FORM No. 1760.

Infant coming of age pending the cause.

And the said [infant], pending the action, having became of full age, and having elected and stipulated that [the answer of the defendant W. X. stand, as for her answer] in the place and stead of the answer of her guardian ad litem, on her behalf;

FORM No. 1761.

Withdrawal of answer.46

And the defendant [name] having withdrawn his answer herein [and complied with the prayer of the complaint so far as relief was sought against him];

FORM No. 1762.

Another Form.

This action having been duly brought to trial upon the issues arising on [indicate which, as thus:] the first defense in the answer to the first cause of action in the complaint, the second cause of action and all other defenses in the answer having been duly withdrawn;

FORM No. 1763.

Continuance on death of original party.

And this action having, on the decease of the defendant Y. Z., been continued in the name of W. X., as his executor, by an order of this court duly entered on the

day of

and said executor having duly appeared by attorney;

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19 ;

FORM No. 1764.
Amendment of complaint.

And the said summons and complaint having been duly amended by order of this court duly made and entered the

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day of

19 after due notice to all parties, making the said successors of Y. Z. parties defendant, and also joining as parties defendant the following persons, whose names or residences or both were not known, namely [names], and all of said persons so joined as defendants having duly appeared and answered herein;

46 Withdrawal should appear on the issue was adjudicated. Schmidt the record, in order to protect the party from a subsequent claim that

v. Zahensdorf, 30 Iowa, 498.

FORM No. 1765.

Supplemental summons.

And M. N., mentioned in the complaint herein, having heretofore died, and a supplemental summons having been duly issued pending this action, bringing in as defendant therein [names and description, as thus:] O. N. and P. N., the heirs of said M. N., in his place and stead [and recite service or appearance, and default or appearance at trial, etc., as above].

FORM No. 1766.

Abatement as to one defendant.

And the defendant Q. R. having died pending this action, his interest in the subject of the action surviving to the defendant W. X., and no other representative of said Q. R. being a necessary party,

[Or thus:] and it duly appearing by the proofs and admissions on the trial that the defendant Q. R., copartner of the defendants W. X. and Y. Z., is deceased;

FORM No. 1767.

Filing lis pendens.

And a proper notice of the pendency of this action having been duly filed in the office of the clerk of the county of

the

day of

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19 at [or after] the time of the filing of the complaint herein; 47

FORM No. 1768.

Waiver of jury trial48

And a trial by jury having been duly waived by consent of all parties who have appeared, duly given in open court, and entered in the minutes [or, by written consent of all the parties who have appeared, duly filed];

FORM No. 1769.

Previous order for judgment on a frivolous pleading.

And judgment on the answer of the defendant W. X., as frivolous, having been duly ordered, by order duly made and entered herein the day of

19 ;

FORM No. 1770.

Waiver of notice of judgment.

And the defendant X. Y. having in writing duly waived notice for application for judgment herein;

47 N. Y. Gen. Rules No. 60.

48 Maxwell v. Stewart, 21 Wall. 71;

King v. Burdett, 12 W. Va. 688; N. Y.
Code Civ. Pro., § 1009.

day of

FORM No. 1771.

Injunction.

And this court having by an order duly made and entered on the 19 , granted an injunction pending this action, forbidding the defendants [briefly indicating what];

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FORM No. 1772.

Receivership.

And this court having by order entered the

day of 19, duly appointed R. C., Esq., receiver pending this action of [concisely indicate fund], and he having duly qualified and acted as such;

FORM No. 1773.
Accounting of trustee.

And the said W. X., as trustee of

having rendered a

full account of his trust, and having been examined thereon under oath in open court;

FORM No. 1774.

Submission of stipulation as to facts.

And the said cause having been submitted to the court for its decision upon the stipulation to the parties attached to and made part of the findings of the court on file herein;

FORM No. 1775.

Consent to judgment.

And the defendant [name] consenting49 [by his counsel5] to the following judgment;

FORM No. 1776.

Judgment dismissing the complaint upon the merits.

[Caption and recitals according to the case; see previous Forms, continuing:] and the court having duly directed judgment in favor of the defendant, dismissing the complaint upon the merits,51 with costs [and an allowance of dollars] to the defendant [or, to each of the several defendants or classes of de

49 Partridge v. Shepard, 71 Cal. 470, 12 Pac. Rep. 481; Bryan v. Kennett, 113 U. S. 179.

50 Pacific R. R. Co. v. Ketchum, 101 U. S. 289.

51 See note 53, post, and note 22 to Form 1748. In the absence of statute unqualified dismissal in an equity suit is a bar to a further suit (Durant r Essex Co., 7 Wall. 107; Edgar v. Buck (Mich., 1887), 32 N. W. Rep. 644; S. P., Burton v. Burton, 58 Vt. 414, 2 New Engl. Rep. 607), if the grounds appear to be the same. Steam-Gauge,

etc., Co. v. Meyrose, 27 Fed. Rep. 213, and cases cited; United States v. Lane, 8 Wall. 185.

The common-law rule was other wise, and by statute in New York (Code Civ. Pro., § 1209) the commonlaw rule obtains in equitable actions. Petrie v. Trustees of Ham. Coll., 32 Hun, 81, 36 N. Y. Supp. 636.

It is the better opinion that plaintiff has a right to have the adjudicating part of the judgment expressed to be without prejudice, or merely as abating the action, if such be the

fendants, appearing by different attorneys], and the costs52 of the defendant having been duly adjusted at the sum of dollars [if several bills were allowed name each party and the sum allowed him or them]:

Now, on motion of T. Z., attorney for the defendant [if several appearing separately, name each]:

IT IS ADJUDGED, that the plaintiff's complaint be, and the same is, hereby dismissed, upon the merits53 [or, without prejudice54 of the court of first instance, may give costs. Bradstreet Co. v. Higgins, 114 U. S. 262, and cases cited.

legal effect of the adjudication. See for an instance of reversal for refusal of this right, Coubrought. Adams, 70 Cal. 374, 11 Pac. Rep. 634, 636. Contra, Squire v. Hewlett (N. H., 1886), 2 New Eng. Rep. 230.

But the qualification must be allowed by the court. The clerk cannot originate it, for it is a judicial act. As to adding it nunc pro tunc, see Burton v. Burton (above cited).

The dismissal should be without prejudice, if it be for want of jurisdiction (Van Norden v. Morton, 99 U. S. 378), or for defect of pleading or parties (Hughes v. United States, 4 Wall. 232), or excess of parties plaintiff (House v. Mullen, 22 id. 42), or for failure to appear (Miller v. McGuckin, 15 Abb. N. C. 204), or for unreadiness to go on (Ramsay v. Erie Ry. Co., 9 Abb. Pr. (N. S.) 242).

Where it is for failure to establish a case by adequate proof, it should be on the merits (Gale v. Gould, 40 Mich. 515, 8 Repr. 655), unless in the discretion of the court plaintiff ought to have another opportunity.

There may be dismissal on the merits as to part or one aspect of the claim without prejudice as to another.

The above decisions have little pertinency in New York, where by the Code (§ 1209) a judgment of dismissal does not bar a subsequent action unless it expressly declares, or it appears by the judgment roll that it is rendered upon the merits. Therefore, even if the decision and judgment make no reference to the adjudication being upon the merits, it may nevertheless be so held if it appears that such an adjudication has in fact been made. See Keyes v. Smith, 183 N. Y. 376. In the New York Municipal Court the minutes may be referred to determine the question. Stecher v. Ind. Order, 45 Misc. 340, 90 N. Y. Supp. 332.

52 An appellate court, on dismissing for want of jurisdiction on the part

Whether either court can do so where the dismissal is for want of its own jurisdiction, compare Harriott v. N. J. R. R. & Transportation Co., 1 Daly, 377, rev'g 8 Abb. Pr. 284; King v. Poole, 36 Barb. 242; Donnelly v. Libby, 1 Sweeny, 259, 287; Humiston v. Ballard, 40 How. Pr. 40; Sullivan v. Frazee, 4 Robt. 616; Humiston v. Ballard, 63 Barb. 9.

The better opinion is that every court has jurisdiction as against a plaintiff to determine its own jurisdiction of the action brought before it, and consequently power to charge a plaintiff with the costs of a judgment determining that question against him. In other words, it has jurisdiction to dismiss the action, though it would have none to award the desired relief. See State v. Thompson, Mo., 1884. But the contrary is settled in many courts. Compare Mansfield, etc., Ry. Co. v. Swan, 111 U. S. 379; overruling in effect Mead v. Platt, 17 Fed. Rep. 836.

53 If the provision "upon the merits " has been erroneously inserted, without authority in the decision, plaintiff should move to set aside the judgment as irregular (Col. Bank v. Gospel Tab. Church, 127 N. Y. 361; Petrie v. Trustees of Ham. Coll., 92 Hun, 81, 36 N. Y. Supp. 636); or to amend the judgment, by striking out the words on the merits." Card v. Meincke, 70 Hun, 382, 24 N. Y. Supp. 375. Failing to so move, and filing exceptions to the decision, may operate as a waiver of the objection. See Keyes v. Smith, 183 N. Y. 376,

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A recital that the dismissal is on the merits is not equivalent to an adjudication to that effect. See Whiteside v. Novac Cottage Assoc., 68 Hun, 565, 23 N. Y. Supp. 63; aff'd, 142 N. Y. 585.

54 In most jurisdictions the words

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