Oct. 11, 1862, $502. § 511. [502.] The provisions of this chapter shall apply to the proceedings in both actions and suits, exapplies both to cept as herein otherwise or specially provided. This chapter actions and suits. Oct. 11, 1862, $503. § 512. [503.] If an original paper or pleading be lost, or withheld by any person, the court or judge thereof may order a copy thereof to be filed and used instead of how supplied. the original. Lost papers, 6 Or. 74. Oct. 11, 1862, Lost papers, how supplied: See § 542 [532], post. It was held in McLendon v. Jones, 8 Ala. 298, S. C., 42 Am. Dec. 640, that the manner of correcting the loss of the pleadings is to show by affidavits what the record contained, the loss of which is to be supplied, and that the substitution could only be made after a notice of motion, which must be explicit. In Benedict v. Cozzins, 4 Cal. 381, the defendant answered a substituted complaint before objecting that it was allowed to be filed without notice, and in that case notice was held unnecessary, solely on that ground: People v. Cazalis, 27 Id. 523. Where, instead of applying to the court below to restore its own record, and then taking a transcript of the record thus restored, and filing it in the supreme court, appellants applied to the lower court to aid them in making up a record to be used on appeal, the supreme court said that the lower court was not authorized to say what papers should be used on appeal; that the proceeding should have been for the court below, upon due notice to the parties, to have ascertained what particular papers should constitute the judgment roll in that court, and to order that such papers be substituted for those which were lost; that they be attached together, filed in the cause, and thenceforth constitute the judgment roll. The roll thus certified would be the only one that the supreme court could notice. If either party should be dissatisfied with the roll, on account of errors committed by the district court in making it up, the proper mode of review would be to appeal from the order as subsequent to judgment: Buckman v. Whitney, 28 Id. 557. If the defendant in ejectment relies on a deed claimed to have been given to him by the plaintiff, but lost, he must prove not only the existence of the deed, but its contents: Sais v. Sais, 49 Id. 263. § 513. [504.] Successive actions or suits may be maintained upon the same contract or transaction, tions or suits. whenever, after the former action or suit, a new cause of action or suit arises therefrom. Successive ac Oct. 11, 1862, 505. Consolidation of actions or suits. § 514. [505.] Whenever two or more actions or suits are pending at one time, between the same parties and in the same court, upon causes which might have been joined, the court may, upon the motion of the defend 15 Or. 468, 475. ant, order the same to be consolidated. An action or 16 Or. 7. 16 Or. 14. suit is deemed to be pending from the commencement thereof until its final determination upon appeal, or until the expiration of the period allowed to take an appeal. Consolidation. A court has no power to consolidate suits brought upon distinct causes of action which cannot be joined: Wallace v. Eldredge No. 2, 27 Cal. 500. It must be shown that they are the same in their nature, and that the causes of action may be joined: Wilkinson v. Johnson, 4 Hill, 46; Dunning v. Bank, 19 Wend. 23. If, pending an action for partition, one of the parties brings an action against other parties to enforce a declaration of trust made by the latter, the actions may be consolidated: Bixby v. Bent, 51 Cal. 522. Where the jurisdiction of a court is limited to proceedings for less than a certain sum, consolidation of several causes, each within the jurisdictional amount, will not oust the jurisdiction, because the relief sought in all together_exceeds such amount: Cariaga v. Dryden, 29 Id. 307. If the grounds of a motion to consolidate are good, and are not denied, the order will usually be made: Dunning v. Bank, 19 Wend. 23; but if the order will prejudice plaintiff it will generally be refused: Pierce v. Lyon, 3 Hill (N. Y.), 450. An action for libel against a publisher, and another for the same cause against his editor, will not be consolidated: Oct. 11, 1862, The party objecting to the consoli- The granting or denial of a motion to consolidate is discretionary: Campbell etc. Co. v. Williamson, 1 N. Y. Mo. Law Bull. 26. Action or suit pending. — A suit is pending until final determination on appeal, or until the period for appeal has expired: Dick v. Kendall, 6 Or. 166. In absence of such an enactment as this, it was held that an action was pending after default, and till final judgment was entered: Abadie v. Lobero, 36 Cal. 391. A suit is pending notwithstanding an appealable interlocutory decree: Bixby v. Bent, 51 Id. 522; Hinds v. Gage, 56 Id. 486; Crowther v. Rowlandson, 27 Id. 376. $506. When court has jurisdic tion of natural § 515. [506.] No natural person is subject to the oct. 11, 1862, jurisdiction of a court of this state, unless he appear in the court, or be found within the state, or be a resident thereof, or have property therein; and in the last case person." only to the extent of such property at the time the jurisdiction attached. But this section is not to be construed to limit the power of the courts of this state to declare a marriage void, or a dissolution thereof, when the defendant is a non-resident of the state, in the cases provided for in title VII. of chapter V. Jurisdiction obtained by appearance: See § 62 [61], ante; on appearance in pursuance of personal service of process, $$ 55 [54] and 56 $507. § 516. [507.] No corporation is subject to the juris- Oct. 11, 1862, diction of a court of this state, unless it appear in the Jurisdiction court, or have been created by or under the laws of this over corpostate, or have an agency established therein for the transaction of some portion of its business, or have property ration. Oct. 11, 1862, $507. Oct. 11, 1862, $ 508. Exercise of jurisdiction. Oct. 11, 1862, § 509. When majority of persons or 18 Or. 285. Oct. 11, 1862, $ 510. Computation of time. therein; and in the last case only to the extent of such property at the time the jurisdiction attached. Jurisdiction over corporations: See the note to § 55 [54], ante, pp. 179, 180. § 517. [508.] When the court has jurisdiction of the parties, it may exercise it in respect to any cause of action or suit, wherever arising, except for the specific recovery of real property situated without this state, or for injury thereto. § 518. [509.] Whenever there is more than one referee, all must meet, but a majority of them may do any act which might be done by all, and whenever any authority is conferred on three or more persons, it may be exercised by a majority of them, upon the meeting of all, unless expressly otherwise provided. § 519. [510.] The time within which an act is to be done, as provided in this code, shall be computed by excluding the first day and including the last, unless the last day fall upon a Sunday, Christmas, or other nonjudicial day, in which case the last day shall also be excluded. The time for the publication of legal notices shall be computed so as to exclude the first day of publication, and to include the day on which the act or event of which notice is given is to happen, or which completes the full period required for publication. Computation of time. - In computing time from the date, or from the day of the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested: Bemis v. Leonard, 118 Mass. 502; Mish v. Mayhew, 51 Cal. 514; Sheets v. Selden, 2 Wall. 190; O'Connor v. Towns, 1 Tex. 107; Goode v. Webb, 52 Ala. 452; Handley v. Cunningham, 12 Bush, 402. Where a statute directs the publication of notices a certain number of times a week for a specified number of months, it is requisite, not only that the number of weekly publications be observed, but that the prescribed length of time, calculated according to the calendar month, be followed: Savings and Loan Society v. Thompson, 32 Cal. 347. Fractions of a day will be considered by the courts, where time is important, and the rights of parties are concerned: Craig v. Godfrey, 1 Cal. 415; S. C., 54 Am. Dec. 299; People v. Beatty, 14 Id. 566. Holidays, etc. Non-judicial days: See § 928 [899], post. Intervening holidays are counted as part of the computed time. Should the law require the publication of a notice daily for ten days, Sundays excepted, the exception in favor of the Sunday relates to the daily publishing of the notice, and not to the period of time during which publication is to be counted: Taylor v. Palmer, 31 Cal. 241; Mites v. McDermott, 31 Id. 271. And if published on Sunday, the fact that the day is a dies non does not vitiate the service, that pub lication being but one of a series of acts required to make the service complete: Saving and Loan Society v. Thompson, 32 Id. 347. In excluding the last prescribed day in estimating the length of time for the performance of a duty required by law, it is necessary to include the following Monday. A publication of a resolu tion of intention was pronounced in- Oct. 11, 1862, TITLE I. OF OFFER TO COMPROMISE AND THE INSPECTION OF WRITINGS. $520. Offer to compromise, how accepted and effect thereof. § 521. Order for the inspection or copy of books or papers, and effect of refusal or neglect to obey the same. § 511. Offer to compromise. 12 Or. 473. § 520. [511.] The defendant may, at any time before Oct. 11, 1862, trial, serve upon the plaintiff an offer to allow judgment or decree to be given against him for the sum, or the property, or to the effect therein specified. If the plaintiff accept the offer, he shall by himself or attorney in- 16 Or. 49. dorse such acceptance thereon, and file the same with the clerk before trial, and within three days from the time it was served upon him; and thereupon judgment. or decree shall be given accordingly, as in case of a confession. If the offer be not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence on the trial; and if the plaintiff fail to obtain a more favorable judgment or decree, he shall not recover costs, but the defendant shall recover of him costs and disbursements from the time of the service of the offer. Offer to compromise. The offer may be made in any case: Bridenbeeker v. Mason, 16 How. Pr. 203; including a foreclosure proceeding: Bathgate v. Haskins, 63 N. Y. 261; action of claim and delivery: Cochran v. Gottwald, 40 N. Y. Super. 443; an action to recover land: Keese v. Wyman, 8 How. Pr. 88. But if made in fraud or rights of third persons, it may be set aside: Ross v. Bridge, 15 Alb. Pr. 150. An offer by one joint debtor may bind his co-defendant, as to joint property and his indi- "More favorable judgment."-A Oct. 11, 1862, $ 511. Oct. 11, 1862, $512. Inspection of books and papers. 16 Or. 5. when the sum offered exceeds the Judgments in cases of confes- 334 et seq. Judgment can be entered only when the offer is made after action brought and while pending: Crane v. Hirshfelder, 17 Cal. 584. Tender: See § 561 [551], post. § 521. [512.] The court, or judge thereof, while an action or suit is pending, may order either party to give the other, within a specified time, an inspection and copy, or permission to take a copy, of any book, document, or paper in his possession, or under his control, containing evidence or matters relating to the merits of the action or suit, or the defense therein. If obedience to the order be neglected or refused, the court may exclude the book, document, or paper from being given in evidence, or if wanted as evidence by the party applying therefor, may direct the jury to presume it to be such as he alleges it to be; and the court may also punish the party so neglecting or refusing as for a contempt. This section is not to be construed to prevent a party from compelling another to produce books, documents, or papers, when he is examined as a witness. Oct. 11, 1862, $513. Order and motion defined. 16 Or. 268. Oct. 11, 1862, $514. Motions where and to whom made. § 522. [513.] Every direction of a court or judge made or entered in writing, and not included in a judgment or decree, is denominated an order. An application for an order is a motion. § 523. [514.] Motions shall be made to the court or judge as provided in other parts of this code. They shall be made within the circuit where the action or suit is triable, except when made to a judge of the court before whom the action is pending, and without notice, in which case an order may be made by such judge in any part of the state. |