then all other persons not otherwise rendered incompetent, shall be made competent witnesses in relation to such transaction or communication on said trial or hearing. Nothing contained in Section eight of this Code of Procedure shall be held or construed to affect or restrain the operation of this Section. wife compelled 1. In any trial or inquiry in any suit, action or proceeding in Husband or any Court, or before any person having by law or consent of par- to testify. ties, authority to examine witnesses or hear evidence, the husband. or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness, on behalf of any party to such suit, action or proceeding. 2. Nothing herein contained shall render any husband or wife competent or compellable to give evidence for or against the other in any criminal action or proceeding (except to prove the fact of marriage in case of bigamy), or in any action or proceeding instituted in consequence of adultery, or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage), or in any action or proceeding for or on account of criminal conversation. 3. No husband or wife shall be compellable to disclose any confidential communication made by one to the other, during their marriage. TO MAKE SURVIVORS OF PARTIES TO A TRANSACTION IMPEACHED FOR February, 1876. (16 Stat. 39.) a transaction fraud compe That in any proceeding in any of the Courts of this State in Survivors to which any transaction shall be impeached for fraud by a creditor impeached for or creditors of either party to such transaction, or by any other tent and compellable to tesperson interested in establishing such fraud, the survivor or sur- tify. vivors of the parties to such alleged fraud, when one or more of said parties shall be dead, shall be competent and compellable to testify in behalf of such creditor or creditors, or other person interested in establishing such fraud, any law, rule or usage to the contrary notwithstanding: Provided, That nothing herein shall render such survivor or survivors competent to testify in relation to such transaction in their own behalf in any proceeding instituted by him or them: Provided,, further, That nothing herein shall render any person incompetent as a witness who is now competent under the laws and usages of this State. Definition of an order. 5-349, 6-476. Of motion, how and when made. Definition of a motion. CHAPTER VIII. MOTIONS AND ORDERS. SEC. 416. Definition of an order. 417. Definition of a motion. Motions, how and when made. Stay of proceedings. on motions. 418. Notice of motion. Compelling parties to testify Decision on motion. 419. In absence, &c., of Judge at Chambers, motion may be transferred to another Judge. 420. Enlarging time for the proceedings in an action. SEC. 416. Every direction of a Court or Judge, made or entered in writing, and not included in a judgment, is denominated an order. SEC. 417. (1.) An application for an order is a motion. (2.) Motions may be made to a Judge or Justice out of Court, except for a new trial on the merits. Cureton v. (3.) Orders made out of Court, without notice, may be made by Dargan. (Mss.) the Judge of the Court, in any part of the State. Stay of proceedings. Compelling parties to testify. (4.) Motions upon notice must be made within the Circuit in which the action is triable, or, in the absence or inability of the Judge of the Circuit, may be made before the Judge of a Circuit adjoining that in which it is triable (5.) A motion to modify or vacate a provisional remedy, and an appeal from an order allowing a provisional remedy, shall have preference over all other motions. (6.) No order to stay proceedings for a longer time than twenty days shall be granted by a Judge out of Court, except upon previous notice to the adverse party. (7.) When any party intends to make or oppose a motion in any Court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such Court may, by order, appoint a referee to take the affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue. And the fees of such referee for such service shall be three dollars per day. (8.) Whenever a motion shall be made in any cause or proceeding in any of the Courts in this State, to obtain an injunction order, order of arrest, or warrant of attachment, granted in any such case or proceeding, it shall be the duty of the Judge, Trial Justice, or other officer, before whom such motion is made, to render and make known his decision on such motion within twenty days after the day upon which such motion shall or may be subImitted to him for his decision. SEC. 418. When a notice of a motion is necessary, it must be served four days before the time appointed for the hearing; but the Court or Judge may, by an order to show cause, prescribe a shorter time. Decision on motion. Notice of a motion. him to another SEC. 419. When notice of a motion is given, or an order to In absence, &c., of Judge at show cause is returnable before a Judge out of Court, and at the Chambers, motion may be time fixed for the motion he is absent or unable to hear it, the transferred by same may be transferred, by his order, to some other Judge, be- Judge. fore whom the motion, in case of his absence or inability, might 6-476. originally have been made. time for pro action. SEC. 420. The time within which any proceeding in an action. Enlarging must be had, after its commencement, except the time within ceedings in an which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a Judge of the Circuit Court. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. CHAPTER IX. ENTITLING AFFIDAVITS. SEC. 421. It shall not be necessary to entitle an affidavit in the Affidavits defectively entiaction, but an affidavit made without a title, or with a defective tled, valid. title, shall be as valid and effectual, for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made. Time, how computed. CHAPTER X. COMPUTATION OF TIME. SEC. 422. The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. Notices, &c., how served. Service, how made. CHAPTER XI. NOTICES AND FILING AND SERVICE OF PAPERS. SEC. 423. Notices, &c., how served. 424. Service, how made. 425. Service by mail. 426. The like, 427. Double time where service by mail. 428. Notice of motion, &c., where personally served. 429. When papers need not be served on defendant. 430. Service of papers where parties reside out of the State. 431. Summons and pleadings to be filed. 432. Service on attorney. 433. When this chapter does not apply. SEC. 423. Notice shall be in writing; and notices and other papers may be served on the party or attorney, in the manner prescribed in the next three Sections, where not otherwise provided by this Code of Procedure. SEC. 424. The service may be personal, or by delivery to the party or attorney on whom the service is required to be made; or it may be as follows: 1. If upon an attorney, it may be made, during his absence from his office, by leaving it with the clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office; or, if it be not open so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion. 2. If upon a party, it may be made by leaving the paper at his residence between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. SEC. 425. Service by mail may be made where the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail. SEC: 426. In case of service by mail, the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid mail. Service by Double time when served by SEC. 427. When the service is by mail, it shall be double the time required in cases of personal service, except service of notice mail. of trial, which may be made sixteen days before the day of trial, Sullivan v. including the day of service. 6-344. Speights. (Mss.) SEC. 428. Notice of a motion or other proceeding before a Court Of notice of or Judge, when personally served, shall be given at least four days when personalbefore the time appointed therefor. motion, &c., ly served. When papers need not be fendant. SEC. 429. When a defendant shall not have demurred or answered, service of notice or papers in the ordinary proceedings in served on dean action need not be made upon him, unless he be imprisoned for want of a bail, but shall be made upon him or his attorney, if notice of appearance in the action has been given. Service of pa pers where par of State. SEC. 430. Where a plaintiff or a defendant who has demurred or answered, or gives notice of appearance, resides out of the State, ties reside out and has no attorney in the action, the service may be made by mail, if his residence be known; if not known, on the Clerk, for the party. Summons and Pleadings to be SEC. 431. The summons and the several pleadings in an action shall be filed with the Clerk within ten days after the service filed. thereof, respectively; or the adverse party, on proof of the omission, shall be entitled, without notice, to an order from a Judge that the same be filed within a time to be specified in the order, or be deemed abandoned. torney. SEC. 432. Where a party shall have an attorney in the action, Service on atthe service of papers shall be made upon the attorney, instead of the party. When this chapter does SEC. 433. The provisions of this chapter shall not apply to the service of a summons or other process, or of any paper to bring a not apply. party into contempt. |