CHAPTER XI. Judgments. TITLE I. TITLE II. Judgment in an Action. Judgments Taken Without Process. TITLE III.-Vacating or Setting Aside a Judgment, for Irregularity or Error in Fact. TITLE I. Judgment in an action. Articlo 1. General provisions. 2. Mode of taking, entering, and enforcing a judgment. 3. Docketing a judgment; effect thereof, as a lien upon real property: suspending and discharging the lien; satisfaction and assignment of a judgment. ARTICLE FIRST. General provisions. Sec. 1200. Definition of judgment. 1201. [Repealed.] 1202. When judgment may be entered. 1203. Application for judgment. 1204. Judgment may be for or against any of the parties. 1205. When a several judgment may be taken. 1206. Judgment for or against a married woman. 1207. When judgment for plaintiff not to exceed judgment demanded. 1208. Rate of damages. 1209. Effect of judgment dismissing the complaint. 1210. Judgment against a dead person. 1211. Judgment to bear interest. § 1200. [Am'd, 1877.] Definition of judgment. A judgment is either interlocutory or the final determination of the rights of the parties in the action. From Co. Proc., § 245. Am'd by L. 1877, c. 416. § 1201. [Stricken out by L. 1877, c. 416.] § 1202. When judgment may be entered. Judgment may be entered in term or vacation. From L. 1840. c. 386, § 23. § 1203. [Am'd, 1900.] Application for judgment. Judgment must be entered, in the first instance, pursuant to the direction of the court, at a term held by one judge; except where special provision is otherwise made by law. If notice of an application for judgment is not required, and an order for judgment is made by a judge out of court, the judgment may be entered with the same force and effect as if granted in court. Substitute for Co. Proc., § 278. Am'd by L. 1900, c. 147 (in effect Sept. 1. 1900). SS 1204-1210 1204. Judgment may be for or against any of the parties. Judgment may be given for or against one or more plaintiffs, and for or against one or more defendants. It may determine the ultimate rights of the parties on the same side, as between themselves; and it may grant, to a defendant, any affirmative relief, to which he is entitled. From Co. Proc.. § 274, first sentence. 1205. When a several judgment may be taken. Where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment, or require the plaintiff to take judgment, against one or more of the defendants; and direct that the action be severed, and proceed against the others, as the only defendants therein. From Id., § 274, second sentence. 1206. [Omitted; see Table, p. iii.] a married woman. Judgment for or against Judgment for or against a married woman, may be rendered and enforced, in a court of record, or not of record, as if she was single. From Id., 274, last two sentences. § 1207. When judgment for plaintiff not to exceed judgment demanded. Where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint. Where there is an answer, the court may permit the plaintiff to take any judgment, consistent with the case made by the complaint, and embraced within the issue. From Co. Proc., § 275. § 1208. Rate of damages. Where either party is entitled to recover damages, he may recover any rate of damages, which he might have heretofore recovered, for the same cause of action. From Id., 276. § 1209. [Am'd, 1877.] Effect of judgment dismissing the complaint. A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon the merits. New. Am'd by L. 1877, c. 416. § 1210. Judgment against a dead person. Where a judgment for a sum of money, or directing the payment of money, is entered against a party, after his death, in a case where it may be so taken, by special provision of law, a memorandum of the party's death must be entered, with the judgment, in the judgment-book, indorsed on the judgment-roll, and noted on the margin of the docket of the judgment. Such a judgment does not become a lien upon the real property, or chattels real, of the decedent; but it establishes a debt, to be paid in the course of administration. From 2 R. S. 359 (Part 3, c. 6, tit. 4), 7. § 1211. Judgment to bear interest. A judgment for a sum of money, rendered in a court of record, or not of record, or a judgment rendered in a court of record, directing the payment of money, bears interest from the time when it is entered. But where a judgment directs that money paid out shall be refunded or repaid, the direction includes interest from the time when the money was paid, unless the contrary is expressed. From L. 1844, c. 324, § 1; L. 1869, c. 807, § 1. 326 ARTICLE SECOND. Mode of taking, entering, and enforcing a judgment Sec. 1212. Judgment by default in certain actions on contract; how taken. 1213. Amount of judgment in such cases; how determined. 1214. Application to court for judgment by default; when necessary. 1215. Proceedings on such an application. 1216. Application for judgment in case of service by publication, etc. 1217. Attachment and undertaking for restitution, required in certain ac tions. 1218. When judgment cannot be taken against an infant defendant. 1219. When a defendant in default is entitled to notice. 1220. When action may be severed, if issues of law and issues of fact presented. 1221. Judgment how taken, after trial of issues of law and issues of fact, in the same action. 1222. Final judgment, how taken after issue of law only. 1223. Proceedings upon application under the last two sections. 1224. Id.; upon interlocutory judgment, etc., affirmed at a term of the appellato division of the supreme court. 1225. Judgment after trial by jury of specific questions of fact. 1227. Id.; upon motion for a new trial, heard by the appellate division of 1228. Id.; upon trial by court or referee of the whole issue of fact. court. 1230. Final judgment upon decision or report awarding interlocutory judgment, etc. 1231. Id.; how final judgment entered and settled in certain cases. 1232. Interlocutory reference or inquisition; how reviewed. 1233. Motion for judgment upon a special verdict, etc. 1234. Id.; upon verdict subject to opinion of court. 1235. Interest on verdict, etc., to be included in recovery. 1236. Entry of judgment. 1237. Judgment-roll to be filed; of what it consists. 1238. Id.; by whom prepared. 1239. Time of filing judgment-roll to be noted. 1240. When a judgment may be enforced by execution. 1241. When a judgment may be enforced by punishment for disobeying it. 1242. Real property; how sold. Effect of conveyance. 1243. Security upon sale by referee. 1244. Conveyance to state name of party. § 1212. [Am'd 1877, 1879.] Judgment by default in certain actions on contract; how taken. In an action specified in section 420 of this act, where the summons was personally served upon the defendant, and the copy of the complaint, or a notice stating the sum of money for which judgment will be taken, was served with the summons, or where the defendant has appeared, but has made default in pleading, the plaintiff may take judgment by default, as follows: 1. If the defendant has made default in appearing, the plaintiff must file proof of the service of the summons, and of a copy of the complaint or the notice; and also proof, by affidavit, that the defendant has not appeared. Whereupon the clerk must enter final judgment in his favor. 2. If the defendant has seasonably appeared, but has made default in pleading, the plaintiff must file proof of the service of the summons and of the appearance, or of the appearance only: and also proof, by affidavit, of the default. Whereupon, the clerk must enter final judgment in his favor. If the defendant has made default in appearing or pleading, and the case is not one where the clerk can enter final judgment. as prescribed in either of the foregoing subdivisions of this sec tion, the plaintiff must apply to the court for judgment, as prescribed in section 1214 of this act. From Co. Proc., § 246, subd. 1. Am'd by L. 1877, c. 416; L. 1879, c. 542. in such cases; how deter § 1213. Amount of judgment mined. Where final judgment may be entered by the clerk, as prescribed in the last section, the amount thereof must be determined as follows: 1. If the complaint is verified, the judgment must be entered for the sum, for which the complaint demands judgment; or, at the plaintiff's option, for a smaller sum; and if a computation of interest is necessary, it may be made by the clerk. 2. If the complaint is not verified, the clerk must assess the amount due to the plaintiff, by computing the sum due upon an instrument for the payment of money only, the non-payment of which constitutes a cause of action, stated in the complaint; and by ascertaining, by the examination of the plaintiff, upon oath, or by other competent proof, the amount due to him for any other cause of action stated in the complaint. If an instrument, specified in this subdivision, has been lost, so that it cannot be produced to the clerk, he must take proof of its loss and of its contents. Either party may require the clerk to reduce to writing and file the assessment, and the oral proof, if any, taken thereupon. From Co. Proc., § 246, subd. 1. Application to court for judg § 1214. [Am'd, 1877, 1900.] ment by default; when necessary. Where the summons was personally served upon the defendant. within the State, and he has made default in appearing, or where the defendant has appeared, but has made default in pleading; and the case is not one where the clerk can enter final judgment, as prescribed in the last two sections, the plaintiff may apply to the court, or to a judge or justice thereof out of court, for judgment. Upon the application he must file, if the default was in appearing, proof of service of the summons; or, if the default was in pleading, proof of appearance, and also, if a copy of the complaint was demanded, proof of service thereof, upon the defendant's attorney; and in either case, proof by affidavit, of the default which entitles him to judgment. If one or more of the defendants have appeared, and one or more defendants have failed to appear, then the application for judgment must be made to the court, unless the defendants who have appeared consent to the making of such application to a judge or justice out of court. From Co. Proc., § 246. subd. 2. Am'd by L. 1877, c. 416; L. 1900, c. 147 (in effect Sept. 1, 1900). § 1215. [Am'd, 1877, 1901.] tion. Proceedings on such an applica The court, or a judge or justice thereof, must thereupon render the judgment to which the plaintiff is entitled. It, or they, may, without a jury, or with a jury if one is present in court, make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it, or them, to render the judgment, or to carry it into effect; or it, or they, may in its, or their, discretion, direct a reference, or a writ of inquiry, for either purpose: except that where the action is brought to recover damages for a personal injury or an injury to property, the damages must be ascertained by means of a writ of inquiry. Where a reference or writ of inquiry is directed, the court, or a judge or justice thereof. may direct that the report or inquisition be returned to the court, |