forbid a transfer or other disposition of the property of the judgment debtor, not exempt by law, or may forbid any interference therewith. terest. SEC. 3142. If it shall appear that the judgment debtor has any Equitable inequitable interest in real estate in the county in which proceed- R. 3382. ings are had, as mortgagor, mortgagee, or otherwise, and the interest of said debtor can be ascertained as between himself and the person holding the legal estate, or having any lien on, or interest in the same, without controversy as to the interest of such person, the receiver may be ordered to sell and convey such real estate or the debtor's equitable interest therein, in the same manner as is provided by this code for the sale of real estate upon execution. R. 3383. SEC. 3143. If the sheriff shall be appointed receiver, he and Sheriffliable. his sureties shall be liable on his official bond for the faithful discharge of his duties as such. R. 3384. SEC. 3144. The judge or referee acting under the provision of Continuance. this chapter, shall have power to continue his proceedings from time to time until they shall be completed. R. 23356. SEC. 3145. Should the judgment debtor fail to appear after Defendant failbeing personally served with notice to that effect, or should he ing to appear. fail to make full answers to all proper interrogatories thus pro- C. 51, ¿ 1908. pounded to him, he will be guilty of contempt, and may be arrested and imprisoned until he complies with the requirements of the law in this respect. And if any person, party, or witness, disobey an order of the court or judge, or referee, duly served, such person, party, or witness may be punished as for contempt. Corresponding provisions of the adjudicated in the original judgment, Rev. held, not to be in conflict with Const., art. 1, § 19, providing that no person shall be imprisoned for debt, etc., unless in case of fraud, but held, that, in so far as it authorizes the determination in a summary proceeding without a jury, of questions not as to liability of property to seizure der. SEC. 3146. The order mentioned herein shall be in writing and Service of orsigned by the court or judge or referee making the same, and R. ¿3387. shall be served in the same manner as an original notice in other cases. of officers and SEC. 3147. Sheriffs, referees, receivers, and witnesses, shall Compensation receive such compensation as is allowed for like services in other witnesses. cases, to be taxed as costs in the case, and the collection thereof R. 2 3388. from such party or parties as ought to pay the same shall be enforced by an order. of arrest to C. '51, 1959. SEC. 3148. Upon proof to the satisfaction of the court, or offi- When warrant cer authorized to grant the order aforesaid, that there is danger issue. that the defendant will leave the state, or that he will conceal R.339. himself, the said court or officer, instead of the order aforesaid, may issue a warrant for the arrest of the debtor, and for bringing him forthwith before the court or officer authorized to take his examination as hereinbefore provided. After being thus brought before the said court or officer, he may be examined in the same manner and with the like effect as is above provided. Defendant to SEC. 3149. Upon being brought before the court or officer, he may enter into an undertaking in such sum as the court or officer give bond. R. 3390. shall prescribe, with one or more sureties, that he will attend from time to time for examination before the court or officer as shall be directed, and will not, in the meantime, dispose of his property, or any part thereof; in default whereof he shall continue under arrest, and may be committed to jail on the warrant of such court or officer from time to time for safe keeping until the examination shall be concluded. brought. R. 3391. EQUITABLE PROCEEDINGS. SEC. 3150. At any time after the rendition of a judgment, an How and when action by equitable proceedings may be brought to subject any property, money, rights, credits, or interest therein belonging to the defendant, to the satisfaction of such judgment. In such action, persons indebted to the judgment debtor, or holding any property or money in which such debtor has any interest, or the evidences of securities for the same, may be made defendants. fied: petition taken as true. R. 3392. The provisions of this section are real estate: Bridgman v. McKissick, applicable to equitable interests in 15-260. SEC. 3151. The answers of all defendants shall be verified by Answers veri- their own oath, and not by that of an agent or attorney, and the court shall enforce full and explicit discoveries in such answers by process of contempt; or upon failure to answer the petition, or any part thereof, as fully and explicitly as the court may require, the same, or such part not thus answered, sha1 be deemed true, and such order made or judgment rendered as the nature of the case may require. Lien created from time of service of notice. SEC. 3152. In the case contemplated in the two preceding sections, a lien shall be created on the property of the judgment debtor, or his interest therein, in the hands of any defendant or R. 3393, 3394. under his control, which is suffic ently described in the petition, from the time of the service of notice and copy of the petition on the defendant holding or controlling such property or any interest therein. Surrender of property enforced. R. 23395. While a judgment at law is a lien | by proceedings under this and the upon any equitable interest of the preceding sections, acquire a sudebtor in real property (§ 2882 and perior lien upon the property by notes), it is not so in such sense as reason of his greater diligence: Bridyto affect bona fide purchasers without man v. McKissick, 15–260. notice, and a judgment creditor may, SEC. 3153. The court shall enforce the surrender of the money, or securities therefor, or of any other property of the defendant in the execution which may be discovered in the action, and for this purpose may commit to jail any defendant or garnishee failing or refusing to make such surrender until it shall be done, or the court is satisfied that it is out of his power to do so. TITLE XIX. OF PROCEEDINGS TO REVERSE, VACATE, OR MODIFY CHAPTER 1. OF PROCEEDINGS TO REVERSE, VACATE, OR MODIFY JUDGMENTS IN THE COURTS IN WHICH RENDERED. R. SECTION 3154. The district or circuit court in which a judgment By court wher has been rendered, or by which, or by the judge of which, a final rendered order has been made, shall have power after the term at which such judgment or order was made to vacate or modify such judgment or order: 1. By granting a new trial for the cause, within the time, and in the manner prescribed by the sections on new trials; 2. By a new trial granted on proceedings against defendants served by publication only, as prescribed in title seventeen, chapter nine, section two thousand eight hundred and seventy-seven; 3. For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order; 4. For fraud practiced by the successful party in obtaining the judgment or order; 5. For erroneous proceedings against a minor or person of unsound mind, when the condition of such defendant does not appear in the record, nor the errors in the proceedings; 6. For the death of one of the parties before the judgment in the action; 7. For unavoidable casualty or misfortune preventing the party from prosecuting or defending; 8. For error in a judgment shown by a minor within twelve months after arriving at full age. An appeal lies from a proceeding | lar to be set aside under ¶ 3 of this to vacate a judgment for fraud, etc., section: Morgan v. Small, 33–118. as provided in this section: Dryden v. Wyllis, 51-534, but such appeal is not triable in the supreme court de noro: Ind. School Dist. of Rock Rapids v. Schrein 46-172. Laches cannot be imputed to a party who brings his action within the time given: Ibid. A judgment rendered by default upon a petition which was not filed by the times a ed in the notice ($ 2600), held, at least sufficiently irregu A decree of divorce obtained by fraud of the successful party, may be set aside under 4, and in the petition to have the decree set aside, defendant need not allege that rights of innocent parties have not intervened, such fact being immaterial: Kush v. Rush, 46-648; S. C., 48-701; and the fact that the party procuring the decree has again married will not prevent its being set aside: Whitcomb v. Whitcomb, 46-437. Such party may Petition for new trial: when proper be convicted of adultery in cohabit- | by default: Luscomb v. Maloy, 26– It may admit of question whether a false statement in a pleading, which the opposite party has a full and fair | opportunity to deny, can amount to fraud practiced by the successful party: Miller v. Albaugh, 24-128. Fraud and negligence of defendant's attorney in not interposing a valid defense, is not a ground for vacating a judgment and granting a new trial: Jones v. Leech, 46-186. The fraud shown in a particular case, held, sufficient to warrant the setting aside of the judgment: Ind. School Dist. of Rock Rapids v. Schreiner, 46-172. That a party intended to appear and defend an action, but was prevented from doing so by a severe illness which rendered him incapable of attending to and interposing his defense, held, sufficient ground for a vacation of the judgment against him Where, after judgment had been rendered, all the written evidence upon which the case had been tried was lost, held, that this was not sufficient reason for granting a new trial, either under 7 or ¶ 1 of this section, although the party was thereby prevented from prosecuting an appeal: Loomis v. McKenzie, 4--416. The evidence in a particular case held, not to establish casualty or misfortune sufficient under this section to warrant the setting aside of a judgment: Niagara Fire Ins. Co. v. Rodecker, 47-162. The error in the judgment, referred to in T, is not an error in fact, but errer in law apparent on the face of the record, such as would be ground for reversal on writ of error or appeal: Bickel v. Erskine, 43-218, 222. SEC. 3155. Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application may be made by petition filed as in other cases, not later than the second term after the discovery, on which notice shall be served and return d, and the defendant held to appear as in an original action. The facts stated in the petition shall be considered as denied without answer. The case shall be tried as other cases by ordinary proceedings, but no petition shall be filed more than one year after the final judgment was rendered. Where the ground for a new trial |212; Miller v. Albaugh, 24-128; but is discovered so near the close of the only reasonable diligence need be term that application cannot be made shown: Stineman v. Beath, 36–73. at that term, it may be made at the following one: Alger v. Merritt, 16121. Where a party bases his petition for a re-trial on the ground of accident or surprise, he must show that This section contemplates applica- he could not, by reason of the accition for a new trial made after the dent or surprise, with reasonable diliexpiration of the three days men-gence, properly defend the action, or tioned in § 2838. If made within the time there specified, it should be by motion; if afterwards. by petition, under this section: First Nat'l Bank of Tama City v. Murdough, 40–26. The petition in the cases here contemplated, need only show the facts upon which the new trial is asked, as in other cases: Stineman v. Beath, 36-73. could not. by such diligence, have discovered the evidence previously to the trial: Richards v. Nucko ls, 19 -555 ; but he need only allege that he could not with reasonable diligence have discovered the testimony before the trial; what was done by him, or what facts existed to show due diligence, is matter of evidence, and need not be stated in the petition, A party asking a new trial on the although necessary in an affidavit for ground of newly discovered evidence, a new trial on such ground under must show the exercise of diligence § 2837 ¶ 7: Woodman v. Dutton, in procuring or discovering such evi-49-398; but, holding contra, see Codence: Stuckslager v. McKee, 40-hol v. Allen, 37-449. other cases: Gibbs v. Buckingham, Laches cannot be imputed to a par- A court of equity will direct new trials in actions at law, in cases where such new trials would have been ordered by the courts wher in the actions were tried had timely applicatiou been made to them, provided proper reasons are shown why application was not made in time, or the grounds upon which the interference of chancery is claimed, arose after the courts of law were deprived of power to grant the relief: Bowen v. Troy Portable Mill Co., 31-460. The court may first try and decide apon the grounds to vacate, etc., as provided in § 3060 (overruling C. & N. W. R. Co. v. Gillett, 38-434), and such trial should be by the court without a jury. The provison that the case shall be tried as other cases, etc., refers to the mode of producing evidence in the ordinary manner instead of by affidavit: Carpenter v. Brown, 50-451. Upon the trial as here provided, a change of venue may be granted as in SEC. 3156. The proceedings to correct mistakes or omissions Mistakes of of the clerk, or irregularity in obtaining a judgment or order, regularity. shall be by motion served on the adverse party, or on his attorney R. 3500. in the action, and within one year; and when made to vacate a judgment because of irregularity in obtaining it, must be made on the second day of the succeeding term. Payment and satisfaction of a judgment by defendant will not bar a proceeding by plaintiff, within proper time, to correct a mistake of the clerk: Goldsmith v. Clausen, 14–278. This section does not apply to an application for the entry of a judgment nunc pro tunc, which has been omitted: Fuller v. Stebbins, 49-376; nor to a motion to correct a record, made by a party against whom the court by mistake rendered a personal judgment without having jurisdiction Where a mistake of the clerk has clerk and ir must be filed. SEC. 3157. The proceedings to obtain the benefit of subdi- When petition visions four, five, six, seven, and eight of section three thousand R. 23504. one hundred and fifty-four, of this chapter, shall be by petition, verified by affidavit setting forth the judgment or order, the facts or errors constituting a cause to vacate or modify it, and the facts constituting a defense to the action if the party applying was a defendant, and such proceedings must be commenced within one year after the judgment or order was made, unless the party entitled thereto be a minor or person of unsound mind, and then within one year from the removal of such disability. The fact that a motion for a new trial has been previously made and overruled, does not debar the party from seeking by proceedings under this section a new trial on other grounds than those previously urged, and such application may be united with other facts than those directly connected with the cause in which the new trial is sought, when such facts constitute a defense to the claim upon which the judgment was founded: The time within which the proceed- That the petition is not verified as |
