erly appointed, and settles up the business given in his charge, and not to cases where his appointment is set aside before such final adjustment, as having been improperly made. In of. SEC. 2904. Before entering upon the discharge of his duties, Oath and bond he must be sworn faithfully to discharge his trust to the best of R. 3420. h's ability, and must also file with the clerk a bond with sureties, C. 51, 1657. to be by him approved, in a penalty to be fixed by the court or judge, and conditioned for the faithful discharge of his duties and that he will obey the orders of the court in respect thereto. R. 3421. SEC. 2905. Subject to the control of the court or judge, a Power of. receiver has power to bring and defend actions, to take and keep C. 51, 1⁄2 16:8. possession of property, to collect debts, to receive the rents and profits of real property, and, generally, to do such acts in respect to the property committed to him as may be authorized. Errors or irregular proceedings of a | cannot be set up in an action brought receiver must be corrected by the by him: Stewart v. Lay, 45–604. court having control of his action, and CHAPTER 13. OF SUMMARY PROCEEDINGS. motion in cer SECTION 2906. Judgments or final orders may be obtained on Judgments on motion by sureties against their principals, by sureties against tain cases. their co-securities, for the recovery of money due them on account R. § 3422. of payments made by them as such; by clients against attorneys; plaintiffs in execution against sheriffs, constables, and other officers, for the receiving of money or property collected for them, and damages, and in all other cases specially authorized by statute. The court, under this section, may | 40-493. order an attorney to pay to the client money collected for him in the course of professional employment, and disobedience to such order may be punished under § 218: Cross v. Ackley, SEC. 2907. Notice of such motion shall be served on the party Notice: seragainst whom the judgment or order is sought at least ten days . 3423. before the motion is made. So the court may make an order against a clerk to compel payment of money received by him on a judgment: Elliott v. Jones, 47-124. vice. R. 2 3424. SEC. 2908. The notice shail state in plain and ordinary lan- Form of guage the nature and grounds of the motion, and the day on which it will be made. See Mansfield v. Wilkerson, 26-482. When abandoned. SEC. 2909. Unless the motion is made and filed with the case on or before the day named in the notice, it shall be considered R. 3425. as abandoned. SEC. 2910. The motion shall be heard and determined without No written pleadings. written pleadings, and judgment given according to law and the R. 3428. rules of equity. See Mansfield v. Wilkerson, 26–182. CHAPTER 14. OF MOTIONS AND ORDERS. SECTION 2911. A motion is a written application for an order Motion defined. addressed to the court, or to a judge in vacation, by any party to a suit or proceeding, or by any one interested therein. R. 3128. A decree or judgment is not an or- here used: Wagner v. Tice, 36–599. der within the caning of the words SEC. 2912. Several objects may be included in the same Several objects motion, if they all grow out of, or are connected with, the action or proceeding in which it is made. included. R. 23438. Proof to sus- Notice of mo tion: how and Notice; what to state. R. & 3430. SEC. 2913. Testimony to sustain or resist a motion may be in the form of affidavits, or in such other form as the parties may agree on or the court or judge direct. If by affidavit, the person making the same may be required to appear by the court or judge and submit to a cross-examination. Similar provision; see $3695. SEC. 2914. A party who has appeared in an action, or who has been served with the original notice in such action in any manner provided by this code, shall take notice of all motions filed during term time upon the same being filed by the clerk and entered in the appearance docket. All motions filed in vacation shall be entered on such docket and served as herein required. A party must take notice of mo- | quired: Preston v. Winter 20-264; tions filed during term. No other Loomis v. McKenzie, 31-425. notice is necessary: Wagner v. Tice, 36-599. A motion to set aside a judgment rendered at a prior term, should not Notice of a motion for change of be heard without notice to the parties venue, made in vacation (under §interested: Keeney v. Lyon, 21–277. 2591), should be given as here re SEC. 2915. When notice of a motion is required to be served, it shall state the names of the parties to the action or proceeding in which it is made, the name of the court or judge before whom it is to be made, and the place where, and the day on which it is to be heard, and, if affidavits are to be used on the hearing, the notice shall be accompanied with copies thereof and shall be served such length of time before the hearing as the court or judge deems reasonable. Service: how made. R. 3431. Same. R 3432. Same. R. 23433. C. '51, 2496. SERVICE. SEC. 2916. Notices, and copies of motions mentioned in this be served by any one who would be authorized to chapter, may serve an original notice. SEC. 2917. The service shall be on each of the parties adverse to the motion, if more than one, or on an attorney of record of such party. SEC. 2918. The service may be personal on such party or attorney, or may be made in the same manner as is provided for the service of the original notice in civil actions; or it may be served on the attorney by being left at his office with any person having the charge thereof. R. 3435. SEC. 2919. Any officer authorized to serve any notice, shall Return. serve at once the same and make prompt return to the party who delivered the same to him, and a failure to do so shall be punished as a disobedience of the process of the court. SEC. 2920. The return of proof of service must state the man- Same. ner in which it was made. R. 3436. may direct SEC. 2921. When the party has no known place of abode in When court this state, and no attorney in the county where the action is pend- manner of sering, or where the parties, plaintiffs or defendants, are numerous, vice. the court or judge may direct the mode of serving notices, and on whom they shall be served. R. 3437. ORDERS. R. 3427. SEC. 2922. Every direction of a court or judge, made or entered order defined. in writing and not included in a judgment, is an order. There is a distinction between an | the statute of limitations applies to order and a judgment. An order is it: Smith v. Shawhan, 37-533, 535. not a judgment in such sense that SEC. 2923. For good cause shown, a judge's order may issue in May issue in vacation, directing any of the officers of the court in relation to the discharge of their duties. Where the sheriff published notice | cation, might make an order directing of a sale in another paper than that the publication to be made in the designated by plaintiff, held, that the proper paper: Herriman v. Moore, judge in vacation, upon proper appli- | 49-171. vacation, SEC. 2924. Such order shall be in force only during the vaca- How long in tion in which it is granted and for the first two days of the ensuing R. 3796. term. This section applies only to the or- tis v. Crane, 38-459; nor to an order der, contemplated in the two prece-in a proceeding by habeas corpus: ding sections, and not to a temporary Shaw v. McHenry, 52-182. injunction granted in vacation: Cur force. C. '51, 2211. SEC. 2925. The judge granting it may require the filing of a Bond. R. 3797. bond as in case of an injunction, unless from the nature of the c. 51, 2212. case such requirement would be clearly unnecessary and improper. SEC. 2926. Orders made out of court shall forthwith be filed To be filed and with and entered by the clerk in the journal of the court in the entered of same manner as orders made in the term. record. CHAPTER 15. OF SECURITY FOR COSTS. when. SECTION 2927. If a defendant shall, at any time before answer- Must be given ing, make and file an affidavit stating that he has a good defense in whole or in part, the plaintiff, if he be a non-resident of this state or a private or foreign corporation, before any other proceeding in the cause shall file in the clerk's office a bond, with a sufficient security to be approved by the clerk, for the payment of Cause dis- When plaintiff becomes non-resident. R. 3444. Additional all costs which may accrue in the action in the court in which it is brought or in any other to which it may be carried, either to the defendant or to the officers of the court. The application for such security shall be by motion, filed with the case, and the facts supporting it must be shown by affidavits annexed thereto, which may be responded to by counter affidavits on or before the hearing of the motion, and each party shall file all his affidavits at once, and none thereafter. This section applies to domestic as | good defense need not state the facts well as to foreign corporations: D. constituting such defense. The affiM. V. Live Stock Ins. Co. v. Hender- davits and counter affidavits provided son, 38-446. for in the latter part of the section are as to the facts on which the motion is based, as the residence or non-residence of plaintiff D M. V. Lire Stock Ins Co. v. Henderson, 38-446. These provisions are not applicable to proceedings in justices courts: Smith v. Humphrey, 15-428. Whether in an action on appeal from a justice's court, security for costs can be required, quære; but the mot on therefor should at least be made at the earliest practicable moment: Adae v. Zangs, 41-536, 540. The affidavit that the party has a From the order dismissing the action for want of a bond under the following section, an appeal lies, but not from the order requiring a bond: Ibid. SEC. 2928. An action in which a bond for costs is required by the last section, shall be dismissed if a bond is not given in such time as the court may allow. SEC. 2929. If the plaintiff in an action, after its institution, becomes a non-resident of this state, he may be required to give security for costs in the manner and under the restrictions provided in the preceding sections of this chapter. SEC. 2930. In an action in which a bond for costs has been given, the defendant may, at any time before trial, make a motion for additional security on the part of the plaintiff; and if on such motion the court is satisfied that the surety in the plaintiff's bond has removed from the state, or is not sufficient for the amount thereof, it may dismiss the action, unless, in a reasonable time to be fixed by the court, sufficient security is given by the plaintiff. SEC. 2931. No attorney or other officer of the court shall be officer cannot received as security in any proceeding in court. Attorney or be. This provision applies not only to the bond for costs, but to injunction, attachment and other bonds: Massie v. Mann, 17–131. An attorney who tenders himself and is accepted as surety, cannot escape liability through the provisions of this section: Wright v. Schmidt. 47-233. SEC. 2932. After final judgment has been rendered in an action in which security for costs has been given as required by bond rendered this chapter, the court, on motion of the defendant or any other Judgment on on motion. R. 23447. person having the right to such costs or any part thereof, may render judgment summarily, according to the chapter on summary proceedings, in the name of the defendant or his legal representatives, against the sureties for costs, for the amount of costs adjudged against the plaintiff or so much thereof as may remain unpaid. CHAPTER 16. OF COSTS. successful SECTION 2933. Costs shall be recovered by the successful Recoverable by against the losing party. But where the party is successful as to a part of his demand, and fails as to part, unless the case is other R.349. wise provided for, the court may, on rendering judgment, make an equitable apportionment of costs. Where plaintiff recovers the whole | brought at law: Hatch v. Judd, 29–95. of his claim, an apportionment of Where a number of witnesses were costs should not be made: Drummond summoned by plaintiff, and in attendv. Irish, 52-41; nor when recov-ance to testify touching an issue preery is had for less than his claim, sented by the pleadings, and the deif the claim is indivisible: Hammond fendant, just before the impaneling v. S. C. & P. R. Co., 49-450. The provision as to apportionment of costs applies only to cases where the demand is composed of separate claims: Upson v. Fuller, 43-409. In an action before a justice upon four separate items, plaintiff recovered judgment, but upon appeal he obtained a general verdict for a less amount; held, that the case was a proper one for apportionment of costs, and that $ $3592-3, as to costs in cases of appeal from justices did not prevent such apportionment: Howder v. Overholster, 48-365. Where defendent admitted plaintiff's claim, and the only contest was on a counter claim in which defendant was successful, held, that plaintiff should pay all costs, excepting those for commencing action and entering judgment for balance found due him: dall v. Clayton, 42-526. See, also, Judd v. Day, 50-247. of a jury, withdrew his answer The apportionment of costs in cer- The mere fact that a decree in favor of the defendants, directed that they pay the costs in the first instance, to be afterward recovered by them of the plaintiffs, held, not of itself sufficient to warrant a reversal, when the facts on which the court acted were not shown: Scott v. Cole 27-109. The court may, in determining the matter of costs, consider affidavits and counter affidavits, or may require the affiants brought in and subjected to examination and cross-examination: Packer v. Packer, 24-20. In an action for an infant by his next friend, such "next friend" is liable for costs: Vance v. Fall, 48–364. Where plaintiff sought, by motion, to have a judgment which had been discharged restored, and defendant resisted, held, that upon the sustaining of the motion all of the costs should have been taxed against the defendant: Kanke v. Herrum,48-276. In an action for the recovery of certain articles of specific personal property, where plaintiff recovered as to certain articles and failed as to others, eld, that an apportionment of costs, was proper: Whitaker v. Sigler, 44419; so held also where plaintiff failed as to a part of his demand, and had increased the costs by bringing his action in equity, when, as to a part of his claims, an action might have been SEC. 2934. In actions where there are several plaintiffs or where several several defendants, the costs shall be apportioned according to parties and the several judgments rendered; and where there are several action. causes of action embraced in the same petition, or several issues, R. 3451. Section applied: Strayer v. Stone, 47-333, 337. As to the apportionment of costs of compensation of receiver, see French v. Gifford, 31-428, in notes to § 2903. causes of |
