for foreclosure of a mortgage an excessive amount is found due by reason of an erroneous method of calculating interest, and this is not discovered until after the term, a petition for a new trial lies under this section, 6 Bull 755.

6. Verdict contrary to law, etc. The verdict must be clearly against the evidence to warrant its being set aside, 6 O. 456; 4 O. S. 566; 12 O. S. 146; 5 O. S. 266; 35 O. S. 370; 18 O. S. 134; 35 O. S. 253. A mere difference of opinion between the court and jury is not a sufficient ground, 80.507; 5 O. S. 266; 4 O. S. 566,

7. Newly discovered evidence. The newly discovered evidence must require a different verdict, 4 0.5; 24 O. S. 133. It must not be cumulative, 11 O. 147; 10 O. S. 598; 1 D. 115; 15 O. 313. The evidence must be such as could not with reasonable diligence have been discovered and produced at the trial, 20 O. S. 150, 163. It is not a test that evidence is cumulative, that affidavits in support of it do not go to some new ground of defense, 2 C. S. C. R. 18. Evidence discovered after motion made is admissible, 35 O. S. 177. Error does not lie to overruling motion on this ground under S. & S. 1155; 26 O. S. 1. Made at trial term, 2 C. C. R. 541.

8. Error of law. The exception must be made at the time the decision is rendered, 10 O. S. 223. A new trial will be granted when competent evidence has been rejected which would conduce to prove the issue, 6 O. 87, 91; where from the whole record the court is of opinion that the direction of the judge, though in terms correct, might have been misunderstood by the jury, 12 O. S. 312; where improper evidence is admitted, and of such a character that it might have influenced the jury, 8 O. 81, 84. A new trial will not be granted because the court gave a wrong reason for rightly rejecting testimony, 40.5; because improper evidence was admitted when it was merely cumulative, and when the jury must have found the facts as they did without it, 3 O. 107; because the court commented on the evidence in its charge to the jury, 6 O. 164; erred as to evidence which could not change the result, 6 O. 87, or in its charge as to the law, 1 0. 330, 349; 5 O. S. 375, 385. A new trial will not be granted on a technical ground, or to let in a technical defense, where substantial justice is done by the verdict, 1 0.357; 50. 109. If the ground of the motion is, that improper testimony was admitted, such fact must be made distinctly to appear, 15 0.735. See, generally, 40 O. S. 339; 2 C. C. R. 51,

25306. For what causes new trial will not be granted. A new trial shall not be granted on account of the smallness of damages, in an action for an injury to the person or reputation, nor in any other action where the damages equal the actual pecuniary injury sustained. [51 v. 57, 2 298; S. & C. 1032.]

See 1 H. 438.

25307. When application for new trial to be made. The application for a new trial must be made at the term the verdict, report, or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered, and produced at

the trial, shall be made within three days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time. [51 v. 57, ? 299; S. & C. 1033.]

The motion must be made within three days after the verdict, etc., 21 O. S. 637, or it is of no avail, 3 Neb. 446; 6 Neb. 532. When a party has filed a motion for a new trial, and afterwards withdraws it and prays the court to proceed to enter up judgment, he can not of right file a second motion, although the three days after the rendition of the judgment have not expired, 2 W. L. M. 554; see 2 C. C. R. 541; 3 Id. 581.

25308. How application for new trial made. The application must be made by motion, upon written grounds, filed at the time of making the motion; the causes enumerated in subdivisions two, three, and seven, of 2 5305, must be sustained by affidavits or depositions, showing their truth, and may be controverted by affidavits or depositions, and for this purpose depositions may also be taken in the county where the action is pending. [77 v. 48; 51 v. 57, 300; 76 v. 99, ? 4; S. & C. 1033.]

The

When

The motion may be made by both parties, 26 O. S. 632. grounds must be stated in the motion, 15 O. S. 211, 215. 25309. Application for new trial after term. the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after, the term at which the verdict, report, or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after the discovery; whereupon a summons shall issue, and be returnable and served, or publication made, as prescribed in ? 5050; the facts stated in the petition shall be considered as denied without answer; if the service be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service; and the case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken, as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered. [51 v. 57, § 301; S. & C. 1033.]

See 35 O. S. 177. Allegations must be affirmatively stated, and not upon information, 7 Neb. 189; the petition is demurrable, Id. A mere allegation that the error was not discovered until after the term at which the judgment was rendered, where two terms have passed since then, is bad on demurrer, 6 Bull 755.

DIVISION IV. JUDGMENT.

CHAPTER I.

JUDGMENT IN GENERAL.

25310. Definition of judgment and order. A judgment is the final determination of the rights of the parties in action; and a direction of a court or judge, made or entered in writing, and not included in a judgment, is an order. [51 v. 57, 22 370, 509; S. & C. 1099.]

The judgment of a court of competent jurisdiction, though erroneous, is binding until reversed, 6 O. 87; 9 0. 37; 11 O. 257; 17 O. S. 319; of a justice, 6 O. S. 302; of a foreign court, when defendant is served with process, 1 O. 259; 5 0.545; 6 O. 43, and can not be collaterally impeached, 5 O. 522; 12 O. 253; 15 O. 447; 20 O. 344 (though service is had on only part of defendants, and judgment is against all, 16 O. 271; though service is by publication on residents, 16 O. S. 177), except in cases of fraud or mistake, 18 O. S. 225; 13 O. S. 446; 17 O. S. 242. "But the rule laid down in regard to impeaching judgments collaterally is this, that the parties to an action can not impeach or set at naught the judgment in any collateral proceedings on the ground that it was obtained by fraud or collusion,'" 1 C. C. R. 212; but one not a party to such judgment has a right to collaterally impeach it whenever, in any case, it is attempted to be enforced against him or to prejudice his rights, Id. The jurisdiction of the courts of common pleas of our own state will be presumed where the record is silent upon the subject, 18 0. 535, and jurisdiction of the person will be presumed, though the fact may not affirmatively appear on the record, 20 O. 344 But the jurisdiction of the court rendering the judgment may always be inquired into when such judgment is made the foundation of the action, foreign or domestic, 33 O. S. 236, and the want of jurisdiction may be shown either as to the subject matter, the person, or in proceedings in rem as to the thing, 27 O. S. 600. Where it affirmatively appears in the record that the defendant was not served with process, or otherwise legally notified, the court has no jurisdiction, 1 O. S. 369, and want of jurisdiction renders a judgment void, 15 O. 435; contra, when court finds jurisdiction, 13 O. S. 446; 35 Id. 550; 39 Id. 366; 43 Id. 78.

25311. Judgment may be for or against one or more of several plaintiffs or defendants. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and by the judgment the court may determine the ultimate rights of the parties on either side, as between themselves, and grant to the defendant any affirmative relief to which he is entitled. [51 v. 57, ? 371; S. & C. 1048.]

The common law rule that where a joint contract is the subject of an action, the recovery must be against all or neither of the defendants, has been modified by this section so as to

authorize judgment to be rendered "for or against one or more of several defendants," where it turns out upon the trial that only one or more of several defendants in such joint action is liable, without subjecting the plaintiff to the necessity of bringing a new action against such defendant or defendants, 10 O.Š. 451. Where a separate action might have been maintained, a separate judgment is proper, 26 O. S. 141; as against drawer and acceptor, Id.; maker and indorser, 2 Bull 18; and in ejectment against several who defend jointly, judgment may be rendered for or against one or more of them, 33 O. S. 395. The section "has no legitimate bearing on the right to commence a several suit upon a cause of action confessedly joint. It relates to the termination and not to the commencement of a suit, and before it can be applied, the testimony must show that the real cause of action was several and not joint," 14 O. S. 291; see 44 O. S. 318, 334.

5312. Court may render judgment against one or more, leaving action to proceed against others. In an action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper. [51 v. 57, § 371; S. & C. 1048.]

As against maker and indorser, 1 H. 77; 2 Bull 18; in an action against two defendants for money on an account, where it appears, a several judgment is proper, 33 O. S. 312; but where a joint suit against all the obligors or contractors is the only remedy, it is error for the court to render a several judgment against one or more of the defendants, leaving the action to proceed against the others, 23 O. S. 543; s. p. 1 C. C. R. 72. In an action against three defendants, where judgment is rendered against two, the third is not a necessary party in proceedings in error, 36 O. S. 460.

5313. Court may dismiss for want of prosecution. The court may dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. [51 v. 57, § 371; S. & C. 1048.]

5314. When action may be dismissed without prejudice. An action may be dismissed without prejudice to a future action:

1. By the plaintiff, before the final submission of the case to the jury, or to the court, when the trial is by the

court.

2. By the court, where the plaintiff fails to appear on

the trial.

3. By the court, for the want of necessary parties. 4. By the court, on the application of some of the de

fendants, where there are others whom the plaintiff fails to prosecute with diligence.

5. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

6. By the plaintiff, in vacation, on payment of costs; and the clerk, in such case, shall forthwith make an entry thereof on the journal, whereupon the dismissal shall take effect; but this clause shall not apply to a petition in error, or a case in which a counter-claim or set-off has been filed.

In all other cases the decision must be upon the merits, upon the trial of the action. [51 v. 57, ? 372; 59 v. 39; S. & C. 1049; S. & S. 601.]

1. Where a general demurrer to a petition is sustained, and leave to amend is given, but the plaintiff, instead of amending, discontinues the action, there is no judgment that bars another suit upon the same cause of action, 4 O. S. 566; but the submission of a case on demurrer to the answer, on the ground that it does not contain a defense, is a final submission of the case, within the meaning of this section, unless leave is obtained to reply or amend; and the plaintiff can not, if the demurrer is overruled, without leave of court, dismiss his action without prejudice, 24 O. S. 445. When a judgment is reversed and the cause remanded for further proceedings, and the plaintiff in the court below then voluntarily becomes non-suit, he is not estopped from bringing a new action, 15 O. S. 464; but plaintiff can not, in a proceeding for the contest of a will, defeat the contest by dismissing his petition where either of the defendants in his answer joins in the prayer that the will be set aside as invalid. 20 O. S. 208. Where the court, finding on the trial that the plaintiff had not proved his case, gave him until the next day to obtain more testimony to prevent being non-suited, and plaintiff failed to find more testimony, it was held not error to refuse to allow plaintiff to dismiss without prejudice on the next day, 9 Rec. 276, 377; 5 Bull 816; generally, 1 Bull 332. 3. See 38 O. S. 314, 318.

4. Dismissal of injunction without prejudice, 44 O. S. 221; 15 Bull 300.

6. "But this clause shall not apply to a petition in error," 22 O. S. 206," or a case in which a counter-claim or set-off has been filed," 14 O. S. 31; see 2 C. S. C. R. 258, 538; but where the allegations of an answer are not such as to entitle defendant to affirmative relief, such answer does not present a counter-claim, which the defendant has a right to have tried after the plaintiff's cause of action has been dismissed without prejudice, 30 O. S. 126. "In all other cases the decision must be upon the merits," etc. Where it appears that a dismissal was upon a hearing of the case, it is to be inferred that it was upon the merits, 4 O. S. 251; but where the record of a former suit was pleaded in bar, and the record of such former suit was silent as to whether the dismissal was upon the merits or for want of prosecution, it was held there was no presumption either way, and the consequence was that, as it must be established that the dismissal was upon