TITLE VIJI. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. Chapter I. Judgment in general. II. Judgment upon failure to answer. III. Issues-the modes of trial and postponements. IV. Trial by jury. V. Trial by the Court. VI. Of references and trials by referees. VII. Provisions relating to trials in general. VIII. The manner of giving and entering judgment. CHAPTER I. JUDGMENT IN GENERAL. § 577. Judgment defined. § 578. Judgment may be for or against one of the parties. Judgment may be against one party and action proceed as to others. § 579. § 580. The relief to be awarded to the plaintiff. § 581. Action may be dismissed or nonsuit entered. $ 582. All other judgments are on the merits. § 577. A judgment is the final determination of the rights of the parties in an action or proceeding. Judgment, confession by: Sec. 1132; default by, sec. 585; demurrer on, sec. 636; estoppel as to, sec. 1908; generally, 664; nonsuit, sec. 581; pleadings, judgment on, sec. 582; on trial by court, sec. 633; on trial by jury, sec. 664. Order defined: Sec. 1003. Final judgment: See, also, secs. 664, 939, post. § 578. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves. Striking out party: Sec. 473. Fresh parties, bringing in: Sec. 389. Service on one defendant out of several, effect of: Sec. 414. Joint debtors, proceedings against: Sec. 989. Joining persons severally liable on same instrument: Sec. 383. Association, action against persons under name of: Sec. 388. § 579. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper. Striking out party: Sec. 473. Fresh parties, bringing in: Sec. 389. Service on one defendant out of several, effect of: Sec. 414. Joint debtors, proceedings against: Sec. 989. Joining persons severally liable on same instrument: Sec. 383. § 580. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. § 581. An action may be dismissed, or a judg. ment of nonsuit entered, in the following cases: 1. By the plaintiff himself, by written request to the clerk, filed among the papers in the case, at any time before trial, upon payment of costs; provided, a counter-claim has not been made, or affirmative relief sought by the cross complaint or answer of the defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon; 2. By either party upon the written consent of the other; 3. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal; 4. By the court, when, upon the trial and before the final submission of the case, the plaintiff abandons it; 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury; 6. By the court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months. The dismissals mentioned in subdivisions one and two hereof are made by entry in the clerk's register. The dismissals mentioned in subdivisions three, four, five, and six of this section, shall be made by orders of the court entered upon the minutes thereof, and shall be effective for all purposes when so entered, but the clerk of the court shall note such orders in his register of actions in the case. 7. And no action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dis missed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within one year, and all such actions shall be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action. But all such actions may be prosecuted, if appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served. [Approved March 9, 1897; Stats. 1897, c. 95.] This section was also amended in 1895; Stats. 1895, p. 31. Dismissal for want of prosecution: See sec. 594, § 582. In every case, other than those mentioned in the last section, judgment must be rendered on the merits. CHAPTER II. JUDGMENT UPON FAILURE TO ANSWER. § 585. In what cases judgment may be had upon the failure of the defendant to answer. § 585. Judgment may be had, if the defendant fail to answer the complaint, as follows: 1. In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, including the costs, against the defendant, or against one or more of several defendants in Code Civ. Proc.-20. the cases provided for in section four hundred and fourteen; 2. In other actions, if no answer has been filed with the clerk of the court within the time speci. fied in the summons, or such further time as may have been granted, the clerk must enter the default of the defendant; and thereafter the plaintiff may apply at the first or any subsequent term of the court for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, is necessary, to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof; or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of damages, in whole or in part, the court may order the damages to be assessed by a jury; or if, to determine the amount of damages, the examination of a long account be involved, by a reference as above provided; 3. In actions where the service of the summons was by publication, the plaintiff, upon the expiration of the time for answering, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the court must thereupon require proof to be made of the demand mentioned in the complaint; and if the defendant be not a resident of the State, must require the plaintiff, or his agent, to be examined on oath, respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Pleadings, judgment on: Sec. 582. As to validity of service of summons: Sec. 411. Names, fictitious, amending, etc.: Sec. 474. Appeal: Sec. 939. Award, judgment on: Sec. 1286. |