# 1862 Territory of Dakota Session Laws/Chapter 8/Title XVI

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TITLE XVI.
ERROR IN CIVIL CASES.
Judgements and orders of inferior courts may be reversed, &c., by district court.Sect. 517. A judgment rendered, or final order made, by a justice of the peace or any other tribunal, board, or officer, exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated, or modified by the district court.
Final orders which may be vacated, &c.Sect. 518. An order affecting a substantial right in an action, when such order in effect determines the action and prevented a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in action after judgment, is a final order which may be vacated, modified, or reversed, as provided in this title.
Judgements and orders of district court may be reversed, &c., by supreme court.Sect. 519. A judgment rendered or final order made by ​the district court, may be reversed, vacated, or modified by the supreme court, for errors appearing on the record.
Reversals, &c., by supreme court, how petitioned for.Sect. 520. A judgment rendered or final order made by any court, board, or tribunal, mentioned in the preceding sections, may be reversed, vacated, or modified, by the supreme court, for errors appearing on the record; but the petition in error, in such case, can be filed only by leave of the supreme court, or a judge thereof.
Proceedings on such reversals, &c.Sect. 521. The proceedings to obtain such reversal, vacation, or modification, shall be by petition, to be entitled, "petition in error," filed in a court having power to make such reversal, vacation, or modification, setting forth the error complained, and there upon a summons shall be issued and served or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be sufficient. The summons shall notify the adverse party, that a petition in error has been filed in a certain case, naming it, and shall be made returnable on or before the first day of the term of the court, if issued in vacation; if issued in term time, it shall be returnable on a day therein named; if the last publication or service of the summons shall be made ten days before the end of the term, the case shall stand for hearing at the term.
Summons, how issued.Sect. 522. The summons mentioned in the last section, shall, upon the written precipe of the plaintiff in error or his attorney, be issued by the clerk of the court in which the petition is filed, to the sheriff of any county in which the defendant in error or his attorney of record may be; and if the writ issue to a foreign county, the sheriff thereof may return the same by mail to the clerk, and shall be entitled to the same fees as if the same had been returnable to the district court of the county in which such officer resides. The defendant in error, or his attorney, may waive in writing the issuing or service of the summons.
Transcript of proceedings to be filed with petition.Sect. 523. The plaintiff in error shall file with his petition, a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified.
Justices shall furnish transcripts, when.Sect. 524. Justices of the peace, and other judicial tribunals having no clerk, and the clerks of every court of record, shall upon request and being paid the lawful fees therefor, ​furnish an authenticated transcript of the proceedings, containing the judgment or final order of said courts, to either of the parties to the same, or to any person interested in procuring such transcript.
No proceedings to reverse, &c., of district court shall stay execution, unless plaintiff in error executes undertaking.Sect. 525. No proceeding to reverse, vacate, or modify any judgment or final order rendered in the county court, or district court, except as provided in the next section, and the fourth subdivision of this section, shall operate to stay execution, unless the clerk of the court in which the record of said judgment or final order shall be, shall take a written undertaking, to be executed on the part of the plaintiff in error to the adverse party, with one or more sufficient sureties, as follows: 1. When the judgment or final order sought to be reversed, directs the payment of money, the written undertaking shall be in double the amount of the judgment or order, to the effect that the plaintiff in error will pay the condemnation-money and costs, in case the judgment or final order shall be affirmed in whole or in part. 2. When it directs the execution of a conveyance, or other instrument, the undertaking shall be in such sum as may be prescribed by any court of record in this territory, or any judge thereof, to the effect that the plaintiff in error will abide the judgment, the same shall be affirmed, and pay the costs. 3. When it directs the sale or delivery of possession of real property, the undertaking shall be in such sum as may be prescribed by any court of record of this territory, or any judge thereof to the effect, that during the possession of such property by the plaintiff in error, he will not commit or suffer to be committed any waste thereon, and if the judgment be affirmed, he will the value of the use and occupation of the property from the date of the undertaking until the delivery of the possession, pursuant to the judgment, and all costs. [4.] When it directs the assignment or delivery of documents, they may be placed in the custody of the clerk of the court in which the judgment was rendered, to abide the judgment of the appellate court, or the undertaking shall be in such sum as may be prescribed as aforesaid, to abide the judgment and pay costs, if the same shall be affirmed.
Undertaking must be approved by court.Sect. 527. Before the written undertaking herein mentioned in section five hundred and twenty-five, shall operate to stay execution of the judgment or order, the execution of ​the undertaking and the sufficiency of the sureties must be approved by the court in which the judgment was rendered or order made, or by the clerk thereof; and the clerk shall indorse said approval, signed by himself, upon the undertaking, and file the same in his office, for the defendant in error.
Proceeding must be commenced within three years,— with exceptions.Sect. 528. No proceeding for reversing, vacating, or modifying judgments or final orders, shall be commenced, unless within three years after the rendition of the judgment, or making the final order complained of; or, in case the person entitled to such proceeding be an infant, a married woman, a person of unsound mind, or imprisoned, within three years, as aforesaid, exclusive of the time of such disability.
No proceedings to reverse, &c., of justice, shall stay execution unless plaintiff execute undertaking.Sect. 529. No proceeding to reverse, vacate, or modify any judgment rendered, or final order made by a justice of the peace, shall operate as a stay of execution, unless the clerk of the district court shall take a written undertaking to the defendant, executed on the part of the plaintiff in error, by one or more sufficient sureties, to the effect that the plaintiff will pay all the costs which have accrued, or may accrue on such proceedings in error, together with the amount of any judgment that may be rendered against such plaintiff in error, either on the further trial of the case, after the judgment of the court below shall have been set aside or reversed, or upon and after the affirmance thereof in the district court. The person entitled to such proceeding shall have the same time for prosecuting the same, before he is barred, as is provided in section five hundred and twenty-eight, unless the said judgment has been paid off or satisfied prior to the commencement of such proceeding.
When judgement is reversed.Sect. 530. When a judgment or final order shall be reversed, either in whole or in part, in the supreme court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below, for such judgment; and the court reversing such judgment, or final order, shall not issue execution in causes that are removed before them on error, on which they pronounced judgment, as aforesaid, but shall send a special mandate to the court below, as the case may require, to award execution thereupon; and such court, to which such special mandate is sent, shall proceed in such cases in the ​same manner as if such judgment or final order had been rendered therein. And, on motion and good cause shown, it may suspend any execution made returnable before it, by order of the supreme court, in the same manner as if such execution had been issued from its own court, but such power shall not extend further than to stay proceedings until the matter can be further heard by the supreme court.
Same.Sect. 531. When a judgment or final order is reversed, the plaintiff in error shall recover his costs, and when reversed in part, and affirmed in part, costs shall be equally divided between the parties.
When it is affirmed.Sect. 532. When a judgment or final order shall be affirmed in the supreme court, the said court shall also render judgment against the plaintiff in error, for five per cent. upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable ground for the proceedings in error.
Mistake, &c., of clerk shall not be ground of error unless.Sect. 533. A mistake, neglect, or omission of the clerk shall not be a ground of error, until the same has been presented and acted upon in the court in which the mistake, neglect, or omission occurred.
Rendering judgement before action stood for trial, shall be deemed clerical error.Sect. 534. Rendering judgment before the action stood for trial, according to the provisions of this code, shall be deemed a clerical error.
Certain writs abolished, and certain powers retained.Sect. 535. Writs of error and certiorari, to reverse, vacate, or modify judgments or final orders in civil cases, are abolished, but courts shall have the same power to compel, complete, and perfect transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, as they heretofore had under writs of error and certiorari.
If judgement of justice be affirmed. Sect. 536. If the judgment of a justice of the peace, taken on error, as herein provided, to the district court be affirmed, it shall be the duty of such court to render judgment against the plaintiff in error, for the costs of suit, and to award execution therefor; and the court shall thereupon order its clerk to certify its decision in the premises, to the justice, that the judgment affirmed may be enforced, as if such proceedings in error had not been taken; or such court may award execution to carry into effect the judgment of such justice, in the ​same manner as if such judgment had been rendered in the district court.
When judgement reversed or set aside.Sect. 537. When the proceedings of a justice of the peace are taken, on error, to the district court, in manner aforesaid, and the judgment of such justice shall be reversed or set aside, the court shall render judgment of reversal and for the costs that have accrued up to that time, in favor of the plaintiff in error, and award execution therefor; and the cause shall be retained by the court for trial and final judgment, as in cases of appeal.
PROCEEDINGS TO REVERSE, VACATE, OR MODIFY JUDGMENTS AND ORDERS IN THE COURTS IN WHICH THEY ARE RENDERED.
A district court may vacate or modify its own judgements, &c., how.Sect. 538. A district court shall have power to vacate, or modify its own judgments or orders, after the term at which such judgment or order was made: 1. By granting a new trial for the cause, within the time and in the manner prescribed in section two hundred and ninety-eight. 2. By a new trial granted in proceedings against defendants constructively summoned, as provided in section sixty-seven. 3. For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order. 4. For fraud practised by the successful party in obtaining the judgment or order. 5. For erroneous proceedings against an infant, married woman, or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. 6. For 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 errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in section three hundred and ninety-seven. 9. For taking judgments upon warrants of attorney, for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.
The proceedings.Sect. 539. The proceedings to vacate or modify the judgment or order on the grounds mentioned in the subdivisions four, five, six, seven, eight, and nine, of the last preceding section, shall be by petition verified by affidavit, setting forth the ​judgment, or order, the grounds to vacate or modify it, and the defence to the action, if the party applying was defendant. On such petition a summons shall issue and be served as in the commencement of an action: Provided, Such summons shall not issue in any case in which there is, upon the minutes of the court, or among the files of the case, a waiver of error by the party or his attorney, unless the court or a judge thereof shall indorse upon the petition permission to issue such summons.
Proceeding to correct mistakes and omissions of clerks.Sect. 540. The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term.
Court may first try the grounds to vacate, &c.Sect. 541. The court may first try and decide upon the grounds to vacate or modify a judgment or order, before trying or deciding upon the validity of the defence or cause of action.
A judgement shall not be vacated until when.Sect. 542. A judgment shall not be vacated on motion or petition, until it is adjudged that there is a valid defence to the action in which the judgment is rendered; or if the plaintiff seeks its vacation, that there is a valid cause of action; and where a judgment is modified, all liens and sureties obtained under it, shall be preserved to the modified judgment.
Party seeking to vacate, &c., may obtain injunction.Sect. 543. The party seeking to vacate or modify a judgment or order, may obtain an injunction suspending proceedings on the whole or part thereof, which injunction may be granted by the court, or any judge thereof, upon its being rendered probable, by affidavit or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified.
When the judgement was rendered before the action stood for trial.Sect. 544. When the judgment was rendered before the action stood for trial, the suspension may be granted as provided in the last section, although no valid defence to the action is shown; and the court shall make such orders concerning the executions to be issued on the judgment, as shall give to the defendants the same rights of delay he would have had if the judgment had been rendered at the proper time.
​Proceedings to vacate and modify, when commenced.Sect. 545. Proceedings to vacate or modify a judgment or order, for the causes mentioned in subdivisions four, five, and seven of section five hundred and thirty-eight, must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, married woman, or person of unsound mind, and then within two years after removal of such disability. Proceedings for the causes mentioned in subdivisions three and six of the same action, shall be within three years, and in subdivision nine within one year after the defendant has notice of the judgment.
Provisions applying to supreme court.Sect. 546. The provisions this title subsequent to section five hundred and thirty-seven shall apply to the supreme court, so far as the same may be applicable to the judgments or final orders of such court.
Cases pending conducted to final judgement.Sect. 547. Cases pending in appellate courts on writs of error or otherwise, when this code takes effect, shall be conducted to final judgment, as if it had not been adopted, and the liens of judgments and decrees rendered when it takes effect shall be preserved.