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

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TITLE IX.
TRIAL.
Chapter I. Issue.—II. Trial.
CHAPTER I.—Issue.
Issues, nature of.Sect. 257. Issues arise on the pleadings, where a fact, or conclusion of law, is maintained by one party and controverted by the other. They are of two kinds: 1. Of law. 2. Of fact.
Issue of fact.Sect. 258. An issue of fact arises: 1. Upon a material allegation in the petition denied by the answer. 2. Upon a set-off or counter claim presented in the answer and denied by the reply. 3. Upon material new matter in the answer or reply, which shall be considered as controverted by the opposite party without further pleading.
ARTICLE I.—Trial in General.
The trial.Sect. 259. A trial is a judicial examination of the issues, whether of law or of fact, in an action.
Issues of law tried by court. Of certain facts, by jury.Sect. 260. Issues of law must be tried by the court, unless referred as provided in section two hundred and seventy-eight. Issues of fact, arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered as hereinafter provided.
Other issues of fact.Sect. 261. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred, as provided in this code.
ARTICLE II. Trials by Jury—Subdivision 1. Formation of the Jury.—2. Conduct of the Trial.—3. Verdict.
Subdivision 1.—Formation of the Jury.
Jury formed according to law.Sect. 262. The general mode of summoning, empanneling, challenging, and swearing a jury, shall be as otherwise provided by law.
Subdivision 2.—Conduct of the Trial.
Trial proceed, how.Sect. 263. When the jury has been sworn, the trial shall proceed in the following order, unless the court for special reasons otherwise direct: 1. The plaintiff must briefly state his claim, and he may briefly state the evidence by which he expects to sustain it. 2. The defendant must then briefly state his defence, and may briefly state the evidence he expects to offer in support of it. 3. The party who would be defeated, if no evidence were given on either side, must first procure his evidence; the adverse party will then produce his evidence. 4. The parties will then be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, permits them to offer evidence in their original case. 5. When the evidence is concluded, either party may request instructions to the jury on points of law, and be heard upon the same, which shall be given or refused by the court; which instructions shall be reduced to writing, if either party require it. 6. The parties may then submit or argue the case to the jury. In the argument, the party required first to produce his evidence, shall have the opening and conclusion. If several defendants, having separate defences, appear by different counsel, the court shall arrange their relative order. 7. The court may again charge the jury after the argument is concluded.
When view of property is necessary.Sect. 264. Whenever, in the opinion of the court, it is proper for the jury to have a view of property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed, shall speak to them on any subject connected with the trial.
​The jury may decide in court or retire. If they retire.Sect. 265. When the case is finally submitted to the jury, they may decide in court or retire for deliberation. If they retire, they must be kept together in some convenient place, under the charge of an officer until they agree upon a verdict, or are discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night, and at their meals. The officer having them under his charge, shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court, and he shall not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.
If jury separate.Sect. 266. If the jury are permitted to separate either during the trial, or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by any other person, on any subject of the trial, and that it is their duty not to form or express any opinion thereon, until the cause is finally submitted to them.
If jury disagree as to law or evidence.Sect. 267. After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information upon the point of law shall be given, and the court may give its recollection as to the testimony on the point in dispute, in the presence of, or after notice to the parties or their counsel.
Jury may be discharged, when.Sect. 268. The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.
New trial may be had, when.Sect. 269. In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately, or at a future time, as the court may direct.
When and how verdict is announced.Sect. 270. When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by the foreman. When the verdict is announced, either party may require the jury to be polled, which is done by the clerk asking each juror if it is ​his verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.
Verdict to be written and signed. If defective.Sect. 271. The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury before they are discharged, be corrected by the court.
Subdivision 3.—Verdict.
General and special verdicts.Sect. 272. The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds the facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented as that nothing remains to the court, but to draw from them conclusions of law.
In what cases rendered.Sect. 273. In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues; and in all cases may instruct them if they render a general verdict, to find upon particular questions of fact to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered on the journals.
If finding facts inconsistent with general verdict.Sect. 274. When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.
Jury must assess amount of money recoverable.Sect. 275. When, by the verdict, either party is entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery.
ARTICLE III.—Trial by the Court.
Sect. 276. The trial by jury may be waived by the ​Trial by jury may be waived, when.parties in the action arising on contract, and with the assent of the court, in other actions, in the following manner: 1. By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney. 2. By written consent in person, or by attorney, filed with the clerk. 3. By oral consent in open court entered on the journal.
Upon trial of questions of facts, court need not state finding, except when.Sect. 277. Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately, from the conclusions of law.
ARTICLE IV.—Trial by Referees.
May be referred, when.Sect. 278. All or any of the issues in the action, whether of fact or law, or both, may be referred, upon the written consent of the parties, or upon their oral consent in court entered upon the journal.
When parties do not consent, court may direct reference, in what cases.Sect. 279. When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a referee in either of the following cases: 1. Where the trial of an issue of fact shall require the examination of mutual accounts, or where the account is on one side only, and it shall be made to appear to the court, that it is necessary that the party on the other side should be examined as a witness to prove the account; in which cases the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein; or, 2. Where the taking of an account shall be necessary for the information of the court before judgment, in cases which may be determined by the court, or for carrying a judgment into effect; or, 3. Where a question of fact, other than upon the pleadings, shall arise upon motion or otherwise, in any stage of the action.
Trial before referees, how conducted.Sect. 280. The trial before referees is conducted in the same manner as a trial by the court. They have the same power to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trial of the case, and to grant adjournments, as the court, upon such trial. They ​must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner. The report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report has the effect of a special verdict.
Parties may agree on referees, or court may appoint.Sect. 281. In all cases of reference, the parties, except when an infant may be a party, may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered accordingly; and, if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be free from exception.
Reference cannot be ordered, by what courts.Sect. 282. A reference as provided in this chapter cannot be ordered by any court inferior to the district court, except by consent of parties to the reference and referees.
Referees sign true exceptions, and return same to court.Sect. 283. It shall be the duty of the referees to sign any true exceptions taken to any order or decision by them made in the case, and return the same with their report to the court making the reference.
Judge may make order of reference, when and how.Sect. 284. A judge in vacation, upon the written consent of the parties, may make any order of reference which the court, of which he is a member, could make in term time. In such case, the order of reference shall be made on the written agreement of the parties to refer, and shall be filed with the clerk of the court with the other papers in the [case].
Referees to be sworn or affirmed.Sect. 285. The referees must be sworn or affirmed well and faithfully to hear and examine the cause, and to make a just and true report therein according to the best of their understanding. The oath may be administered by any person authorized to take depositions.
Compensation of referees.Sect. 286. The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as a part of the costs in the case.
ARTICLE V.—Exceptions.
An exception.Sect. 287. An exception is an objection taken to a decision of the court upon a matter of law.
​Exception taken at the time decision is made.Sect. 288. The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term.
Form of exception.Sect. 289. No particular form of exception is required. The exception must be stated, with so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible.
When decision objected to is recorded.Sect. 290. When the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts.
When not recorded.Sect. 291. Where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing, and present to the court for its allowance. If true, it shall be the duty of a majority of the judges composing the court, to allow and sign it, whereupon it shall be filed with the pleadings as part of the record, but not spread at large on the journal. If the writing is not true, the court shall correct it, or suggest the correction to be made, and it shall then be signed as aforesaid.
Not regarded, when.Sect. 292. No exception shall be regarded, unless it is material, and prejudicial to the substantial rights of the party excepting.
Withdrawn, when.Sect. 293. Exceptions taken to the decision of any court of record may, by leave of such court, be withdrawn from the files by the party taking the same, at any time before proceedings in error are commenced, and before the exceptions are recorded.
ARTICLE VI.—New Trial.
A new trial. May be granted, when.Sect. 294. A new trial is a reëxamination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved for any of the following causes affecting materially the substantial rights of such party: 1. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court, or referee, or abuse of discretion, by which the party was prevented ​from having a fair trial. 2. Misconduct of the jury or prevailing party. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Excessive damages, appearing to have been given under the influence of passion or prejudice. 5. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. 6. That the verdict, report, or decision, is not sustained by sufficient evidence, or contrary to law. 7. Newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. 8. Error of law occurring at the trial, and excepted to by the party making the application.
New trial not granted, when.Sect. 295. A new trial shall not be granted on account of the smallness of damages in an action for an injury in the person or reputation, nor any other action where the damages shall equal the actual pecuniary injury sustained.
Application for, when.Sect. 296. The application for a new trial must be made at the term the verdict, report, or decision is rendered, and except for the cause of newly-discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.
Motion upon written grounds.Sect. 297. The application must be by motion upon written grounds, filed at the time of making the motion. The causes enumerated in subdivisions two, three, and seven, of section two hundred and ninety-four, must be sustained by affidavits showing their truth, and may be controverted by affidavits.
Where grounds for new trial are discovered after term.Sect. 298. 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; on which a summons shall issue, be returnable and served, or publication made as prescribed in section sixty-nine. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term. The case shall be placed on the trial docket, and the witnesses ​shall be examined in open court, or their depositions taken as in other cases, but no such petition shall be filed more than one year after the final judgment was rendered.
ARTICLE VII.—General Provisions.
When damages are recoverable.Sect. 299. Whenever damages are recoverable, the plaintiff may claim and recover any rate of damages to which he may be entitled for the cause of action established.
Provisions respecting trials by ury apply to trials by court.Sect. 300. The provision of this title respecting trials by jury apply, so far as they are in their nature applicable, to trials by court.
ARTICLE VIII.—Time of Trial.
Books to be kept by the clerk.Sect. 301. The clerk of the district court shall keep at least five books, to be called the "appearance docket," the "trial docket," the "journal," the "record," and "execution docket."
The appearance docket.Sect. 302. On the appearance docket, he shall enter all actions in the order in which they were brought, the date of the summons, the time of the return thereof by the officer and his return thereon, the time of filing the petition, and all subsequent pleadings.
The trial docket.Sect. 303. The trial docket shall be made out by the clerk of the court, at least twelve days before the first day of each term of the court; and the actions shall be set for particular days in the order in which the issues were made up, whether of law or of fact, and so arranged that the cases set for each day shall be tried as nearly as may be on that day. For the purpose of arranging said docket, an issue shall be considered as made up, when either party is in default of a pleading.
Trials, in what order. Motions.Sect. 304. The trial of an issue of fact, and the assessment of damages in any case shall be in the order in which they are placed on the trial docket, unless by consent of the parties, or the order of the court, they are continued or placed at the heel of the docket. The time of hearing all other cases shall be in the order in which they are placed on the docket, unless the court in its discretion shall otherwise direct. The court may in its discretion hear, at any time, a motion; and may by rule prescribe the time for hearing motions.
​Appearance term.Sect. 305. In any civil action, wherein the defendant shall answer or demur on or before the first day of the term next succeeding the service of process, such first term shall be the appearance term, and such cause shall be continued, on the application of either party, to the next term, at which time the same shall be tried, unless for good cause the court shall continue the same.
In case of default, judgement rendered at first term.Sect. 306. In actions wherein default is made, judgment shall be rendered at the first term after the service of process, provided service shall be made not less than ten days before the term.
Clerk to make out copy of trial docket.Sect. 307. The clerk shall make out a copy of the trial docket for the use of the bar before the first day of the term of court.