as may be just, and thereupon the entire controversy may be determined in the action. From Co. Proc. part of § 122. Am'd by ch. 416 of 1877 and ch. 246 of 1894. § 821. Dismissal of complaint for neglect to serve sum mons. Where, in an action against two or more defendants, the plaintiff unreasonably neglects to serve the summons upon one or more of them, without whose presence a complete determination of the controversy cannot be had, the court may, in its discretion, upon the application of a defendant who has appeared in the action, dismiss the complaint as against him, and render judgment accordingly. From Co. Proc. § 274. Am'd by ch. 416 of 1877. See § 424. § 822. Id.; for neglect to proceed. Where the plaintiff unreasonably neglects to proceed in the action against the defendant, or one or more defendants against whom a separate judgment may be taken, the court may, in its discretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed. dismiss the complaint as against the moving party or parties and render judgment accordingly. From Id. Am'd by ch. 542 of 1879. See rule 36 (Sup. Ct.). § 823. Feigned issues abolished, and order for trial substituted. Feigned issues have been abolished. In a case, where neither party can, as of right, require a trial by jury of an issue of fact arising upon the pleadings, or where a question of fact, not in issue upon the pleadings, is to be tried, an order for the trial thereof by a jury may be made, stating, distinctly and plainly, the questions of fact to be tried. Such an order is the only authority necessary for the trial. From Co. Proc. § 72. See rule 31 (Sup. Ct.). § 824. Summons and pleadings, to be filed within ten days after service. The summons, and each pleading in an action, must be filed with the clerk, by the party in whose behalf it is served, within ten days after the service thereof. If the party fails so to file it, the adverse party, on proof of the failure. is entitled without notice, to an order from a judge, that it be filed within a time specified in the order, or be deemed abandoned. From Co. Proc. § 416. § 825. Papers in special proceedings, where to be filed. A return or other paper in a special proceeding, where no other disposition thereof is prescribed by law, must be filed, and an order therein must be entered, with the clerk of the county in which the special proceeding is taken. if it is before a county officer, or a judge of a court established in a city: if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by him, of a county where one of the parties resides. From ch. 470 of 1847, § 20. See § 3347, sub. 6. § 826. Publication, where no newspaper in county. Where a notice, or other procceding is required by law to be published in a newspaper published in a county, and no newspaper is published therein, or to be published oftener than any newspaper is regularly published therein, the publication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by law. From 2 R. S. 552, Part 3, ch. 8, tit. 17, § 10. Am'd by ch. 416 of 1877. § 827. Special references in certain cases. Where a provision of this act authorizes the court to approve an undertaking or the sureties thereto; or to make an examination or inquiry; or to appoint an appraiser, receiver or trustee; it may direct a reference, to one or more persons designated in the order, either to make the approval, examination, inquiry or appointment, or to report the facts to the court, for its action thereupon. And where, according to the practice of the court of chancery, on the thirty-first day of December, eighteen hundred and forty-six, a matter was referable to the clerk, or to a master in chancery a court having authority to act thereupon, may direct a reference to one or more persons, designated in the order, with the powers which were possessed by the clerk, or the master in chancery, except where it is otherwise specially prescribed by iaw. From ch. 280 of 1847, § 77. CHAPTER IX. Evidence. TITLE I.-General regulations respecting evidence, and the competency and mode of examination of a witness. TITLE II.-Compelling the attendance and testimony of a witness. TITLE IV.-Documentary evidence. TITLE I. General regulations respecting evidence, and the competency and mode of examination of a witness. ARTICLE 1. Competency of a witness; evidence in particular cases. 2. Administration of an oath or affirmation. ARTICLE FIRST. Competency of a Witness; Evidence in Particular Cases. SEC. 828. No witness to be excluded by reason of interest, etc. 829. When party, etc., cannot be examined. 830. Id.; husband or wife of party, etc. 831. When husband and wife not competent witnesses. Id.; when com petent. 832. Conviction for crime, not to exclude witness; how conviction proved. 833. Clergymen, etc., not to disclose confessions. 834. Physicians not to disclose professional information. 835. Attorneys and counselors not to disclose communications. 836. Application of the last three sections. 837. When witness not excused from testifying. 838. Evidence of party may be rebutted. § 828. No witness to be excluded by reason of interest, etc. Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from being a witness, by reason of his or her interest in the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed or defended. From Co. Proc. § 398; ch. 887 of 1867, § 1. § 829. When party, etc., cannot be examined. Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the, party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee or person so deriving title or interest, is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication. A person shall not be deemed interested for the purposes of this section, by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding or interested in the event thereof. From Co. Proc. § 399. Am'd by ch. 416 of 1877, and ch. 703 of 1881. § 830. Id.; husband and wife of party, etc. Where a party or witness has died or become insane since the trial of an action, or the hearing upon the merits of a special proceeding, the testimony of the decedent or insane person, or of any person who is rendered incompetent by the provisions of the last section taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing, or upon any subsequent trial or hearing, of the same subject matter in an action or special proceeding between the same parties who were parties to such former trial or hearing or their legal representatives, by either party to such new trial or hearing or to such subsequent action or special proceeding, subject to any other legal objection to the competency of the witness, or to any other legal objection to his testimony or any question put to him. The original stenographic notes of such testimony taken by a stenographer, who has since died or become incompetent, may be so read in evidence by any person whose competency to read the same accurately is established to the satisfaction of the court, or officer, presiding at the trial of such action or special proceeding. Added by ch. 542 of 1879; am'd by ch. 595 of 1893, and ch. 563 of 1896, and ch. 352 of 1899. Original section repealed by ch. 166 of 1878. § 831. When husband and wife not competent witnesses. Id.; when competent. A husband or wife is not competent to testify against the other, upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the marriage, or disprove the allegation of adultery. A husband or wife shall not be compelled, or without the consent of the other if living allowed to disclose a confidential communication made by one to the other during marriage. In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy; except that she cannot, without the plaintiff's consent, dis close any confidential communication had or made between herself and the plaintiff. From ch. 887 of 1867, §§ 2, 3 (7 Edm. 198), and ch. 426 of 1876. Am'd by ch. 416 of 1877; ch. 542 of 1879; ch. 149 of 1880, and ch. 103 of 1887. § 832. Conviction for crime not to exclude witness; how conviction proved. A person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any question, relevant to that inquiry; and the party cross-examining him is not concluded, by his answer to such a question. Am'd by ch. 542 of 1879. See § 2008. § 833. Clergymen, etc., not to disclose confessions. A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs. From 2 R. S. 406, Part 3, ch. 7, tit 3, § 72. § 834. Physicians not to disclose professional information. A person duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient. in a professional capacity, and which was necessary to enable him to act in that capacity. From Id., § 73 § 835. Attorneys and counselors not to disclose communications. An attorney or counselor-at-law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment nor shall any clerk, stenographer or other person employed by such attorney or counselor be allowed to disclose any such communication or advice given thereon. Am'd by ch. 564 of 1896. § 836. Application of the last three sections. The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patients professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question by the executor or executors named in said will or the surviving husband, widow or any heir-at-law or any of the next of kin, of such deceased. or any other party in interest. But nothing herein contained shall be construed to disqualify an attorney in the probate of a will heretofore executed or offered for probate or hereafter to be |