Undertaking must be filed, Amount of. court, by an order entered upon motion, to transmit such SEC. 857. An appeal from a justice's court shall not be effectual for any purpose, unless an undertaking be filed, within five days after filing the notice of appeal, with two or more sureties, in the sum of one hundred dollars, for the payment of the costs on the appeal, or if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money, or twice the value of the property, including costs, when the judgment is for the recovery of specific personal property, and shall be to the effect, when the action is for the recovery of money, that the plaintiff will pay the amount of the judgment appealed from, and all costs if the appeal be withdrawn or dismissed, or the amount of any judgment, and all costs that may be recovered against him in said action in the district court. When the action is for the recovery of specific personal property, the undertaking shall be to the effect that the appellant will pay the judgment and costs appealed from, and obey the order of the court made therein, if the appeal be withdrawn or dismissed, or will pay the amount of any judgment and costs which may be recovered against him in said action in the district court, and will obey any order by the court therein. The undertaking shall be accompanied by the affidavits of the sureties, that they are residents of the county, and are each worth the amount specified in the undertaking, over and above all their just debts and liabili ties, exclusive of property exempt from execution. The adverse party may, however, except to the sufficiency of the sureties, within two days after the filing of the undertaking, and unless they or other sureties justify before the justice from whose court the appeal is taken, within two days thereafter, upon notice to the adverse party, the appeal shall be regarded as if no undertaking had been given. A deposit of the amount of the judgment appealed from, including all costs, or the value of the property and all costs, in actions for the recovery of specific personal property, with the justice, shall be equivalent to the filing of the undertaking in this section mentioned; and in such cases the justice shall transmit the money to the clerk of the district court, to be by him paid out on the order of the court. taking stays all SEC. 858. If an execution be issued, on the filing of Filing the under the undertaking, staying all proceedings, the justice shall, proceedings. by order, direct the officer to stay all proceedings on the same. Such officer must, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property or proceeds thereof, as may be necessary to pay the same. TITLE XIV. OF MISCELLANEOUS PROVISIONS. CHAPTER I. SEC. 863. When a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, by proceeding as provided in Section 272, those who were not originally served with the summons and did not appear to the action, may be summoned to show cause why they should not be bound by the judgment in the same manner as though they had been originally served with the summons. Parties not sum moned in actions on joint contract may be sum moned after judgment. case what to con SEC. 864. The summons, as provided in the last sec- Summons in that tion, must describe the judgment and require the person tain and how summoned to show cause why he should not be bound by served. it, and must be served in the same manner and returnable within the same time as the original summons. necessary to file a new complaint. It is not Affidavit to accompany sum mons. Answer, when may contain. What constitutes SEC. 865. The summons may be accompanied by an affidavit of the plaintiff, his agent, representative or attorney, that the judgment, or some part thereof, remains unsatisfied, and must specify the amount due thereon. SEC. 866. Upon such summons, the defendant may filed and what it answer within the time specified therein, denying the judg ment, or setting up any defense which may have arisen subsequently, or he may deny his liability on the obligation upon which the judgment was recovered, except a discharge from such liability by the statute of limitations. SEC. 867. If the defendant, in his answer, deny the the pleadings in judgment, or set up any defense which may have arisen subsequently, the summons, with the affidavit annexed, and the answer, constitute the written allegations in the case; if he deny his liability on the obligation upon which the judgment was recovered, a copy of the original complaint and judgment, the summons, with the affidavit annexed, and the answer, constitute such written allegations. the case. Issues, how tried SEC. 868. The issues formed may be tried as in other cases, but when the defendant denies, in his answer, any liability on the obligation upon which the judgment was rendered, if a verdict be found against him, it must be for not exceeding the amount remaining unsatisfied on such original judgment, with interest thereon. Proceedings on ant to compro mise after suit brought. CHAPTER II. Offer of Defendant to Compromise. SEC. 872. The defendant in any action may at any offer of defend time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence upon the trial; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer. CHAPTER III. Inspection of Writings. SEC. 877. Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other within a specified time, a copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper in his possession, or under his control, containing business accounts or transactions of a pecuniary character relating to the merits of the action, or the defense therein. If compliance with the order be refused, the court may exclude the entries of accounts, of the book, or the document or paper from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume them to be such as he alleges them to be; and the court may also punish the party refusing for a contempt. This section is not to be construed to prevent a party from compelling another to produce books, papers, or documents when he is examined as a witness. CHAPTER IV. Motions and Orders. SEC. 882. Every direction of a court or judge made Order and moor entered in writing, and not included in a judgment, is tion defined. denominated an order. An application for an order is a motion. and orders, when SEC. 883. Motions must be made in the court in Court motions which the action is pending. Orders made out of court made. may be made by the judge of the court in any part of the Territory. at what time to SEC. 884. When a written notice of a motion is re- Notice of motion quired by this Code, or by a rule of the supreme or dis- be given. trict court, it must be given, if the court be held in the same county, with both parties, five days before the time appointed for the hearing; otherwise, ten days. When the notice is served by mail, the number of days before the hearing must be increased one day for every twenty-five Transfer of mo show cause. miles of distance between the place of deposit and the place of service; such increase, however, not to exceed in all thirty days; but in all cases the court, or a judge thereof, may prescribe a shorter time. SEC. 885. When a notice of motion is given, or an tion and orders to order to show cause is made returnable, before a judge out of court, and at the time fixed for the motion, or on the return day of the order, the judge is unable to hear the parties, the matter shall stand continued until the further order of the court or judge, or it may be transferred by his order to some other judge. Order for payment of money, how enforced. When and how served. SEC. 886. Whenever an order for the payment of a sum of money is made by a court, or judge thereof, pursuant to the provisions of this Code, it may be enforced by execution in the same manner as if it were a judgment. Notices must be in writing. When and how served. CHAPTER V. Notices and Filing and Service of Papers. SEC. 891. Notices must be in writing, and notices and other papers may be served upon the party or attorney in the manner prescribed in this Chapter, when not otherwise provided by this Code. SEC. 892. The service may be personal, by delivering to the party or attorney on whom the service is required to be made, or it may be as follows: 1. If upon an attorney it may be made during his absence from his office, by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them, between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office; or if it be not open so as to admit of such service, then by leaving them at the attorney's residence, with some person of suitable age and discretion; and if his residence be not known, then by putting the same, inclosed in an envelope, into the post office directed to such attorney; 2. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion; and if his residence |