24. Application of other provisions

bestina WAL-VA of this title apply to attachments issued in mags trus sure. For this purpose, the reference in section 346 to the Gerakit & provided for by section 344 of this title shall be deemed to refer to the undertaking provided for by section 833 of this title.

Subchapter V-Trial

861. Notice of trial or hearing

(a) When all parties served with process have appeared, or some of them have appeared and the remaining defendants have made default, the magistrate shall fix the day for the trial of the cause or hearing on a motion, and give notice thereof to the parties who have appeared.

(b) The notice shall be in writing, signed by the magistrate, and in substantially the following form:

In the Magistrate's Court, Subdivision of ——, Canal Zone.
plaintiff, v. -defendant
plaintiff, or

Το

to

defendant, or

attorney for plaintiff, and attorney for defendant:

You and each of you will please take notice that the undersigned magistrate before whom the above-entitled cause is pending, has set for hearing the motion of —, filed in said cause (or has set the said cause for trial, as the case may be), before me at o'clock -m., on the

day of

19-.

Dated this

at

(c) The notice shall be served upon all parties who have appeared in the manner provided by section 719 of this title. It shall be served at least 10 days before the trial or hearing if served by mail, and at least 5 days before the trial or hearing if personally served.

(d) The magistrate shall enter on his docket the date of trial or hearing. When the notice is served by mail the magistrate shall enter on his docket the date of mailing, and the entry shall be prima facie evidence of the fact of service.

§ 862. Time for commencement of trial

(a) Unless postponed, as provided in this subchapter, or unless transferred to another subdivision, the trial of the action shall commence at the expiration of one hour from the time specified in the notice provided for by section 861 of this title, and be continued, without adjournment for more than 24 hours at any one time, until all the issues therein are disposed of.

(b) The parties are entitled to one hour in which to appear after the time fixed in the notice mentioned in section 861 of this title, but are not bound to remain longer than that time unless both parties have appeared and the magistrate being present is engaged in the trial of another cause.

(c) If either party fails to appear at the time fixed for trial, the trial may proceed at the request of the adverse party.

§ 863. Postponement by court

The court may, of its own motion, postpone the trial:

(1) for not more than one day, if, at the time fixed by law or by an order of the court for the trial, the court is engaged in the trial of another action; or

(2) for not more than two days, if, by an amendment of the pleadings, or the allowance of time to make an amendment or to plead, a postponement is rendered necessary.

§ 864. Postponement by consent

By consent of the parties given in writing or in open court, the court may postpone the trial to a time agreed upon by the parties.

§ 865. Postponement on application of party

The trial may be postponed upon the application of either party, for a period not more than four months, under the following conditions:

(1) The party making the application shall prove, by his own oath or otherwise, that he cannot, for want of material testimony which he expects to procure, safely proceed to trial, and shall show in what respect the testimony expected is material, and that he has used due diligence to procure it and has been unable to do so.

(2) If the application is on the part of the plaintiff, and the defendant is under arrest, a postponement for more than three hours discharges the defendant from custody, but the action may proceed notwithstanding, and the defendant is subject to arrest on execution in the same manner as if he had not been discharged.

(3) If the application is on the part of a defendant under arrest, before it can be granted he shall execute an undertaking, with two or more sufficient sureties, to be approved by, and in a sum to be fixed by, the magistrate, to the effect that he will render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action, not exceeding the amount specified in the undertaking. When the undertaking is filed, the magistrate shall order the defendant to be discharged from custody.

(4) The party making the application shall, if required by the adverse party, consent that the testimony of any witness of the adverse party, who is in attendance, may be then taken by deposition before the magistrate, and that the testimony so taken may be read on the trial, with the same effect, and subject to the same objection, as if the witness was produced.

(5) The court may require the party making the application to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial may not be postponed. § 866. Adjournment; undertaking

Unless by consent, an adjournment may not be granted for a period longer than 10 days, upon the application of either party, except upon condition that that party file an undertaking, in an amount fixed by the magistrate, with two sureties to be approved by the magistrate, to the effect that he will pay to the opposite party the amount of any judgment which may be recovered against the party applying, not exceeding the sum specified in the undertaking.

§ 867. Mode of trial of issues

Issues of law and issues of fact shall both be tried by the court. § 868. Evidence

Part 3 of this title, relating to evidence, applies to the magistrates' courts unless otherwise specifically provided therein.

Subchapter VI-Judgment

§ 891. Default judgment

(a) If the defendant fails to appear and to answer or move to dismiss the complaint within the time specified in the summons, then, upon proof of service of summons:

(1) if the action is based upon a contract, and is for the recovery of money or damages only, the court shall render judgment in favor of plaintiff for the sum specified in the summons; or

(2) in all other actions the court shall hear the evidence offered by the plaintiff, and render judgment in his favor for such sum not exceeding the amount stated in the summons, as appears by the evidence to be just.

(b) In the following cases the same proceedings shall be had and judgment rendered in like manner as if the defendant had failed to appear and answer or move to dismiss the complaint:

(1) if the complaint has been amended, and the defendant fails to answer it, as amended, within the time allowed by the court; (2) if the motion to dismiss the complaint is denied, and the defendant fails to answer within the time allowed by the court, not to exceed five days; or

(3) if the motion to strike the answer is granted, and the defendant fails to amend the answer within the time allowed by the court.

§ 892. Judgment of dismissal without prejudice

(a) Judgment that the action be dismissed, without prejudice to a new action, may be entered with costs, in the following cases:

(1) when the plaintiff voluntarily dismisses the action before it is finally submitted; or fails to prosecute the action to judgment with reasonable diligence;

(2) when the plaintiff fails to appear at the time fixed for trial or hearing, or at the time to which the action has been postponed, or within one hour thereafter; or

(3) when, after a motion to dismiss the complaint has been granted, the plaintiff fails to amend it within the time allowed by the court.

(b) If a counterclaim has been pleaded or affirmative relief sought by the defendant in his answer, the action shall not be dismissed against the defendant's objection unless the counterclaim or request for affirmative relief can remain pending for independent adjudication by the court.

(c) If a provisional remedy has been allowed and the action is dismissed under this section, the undertaking shall thereupon be delivered by the magistrate to the defendant who may have his action thereon.

§ 893. Judgment of dismissal for failure to bring to trial

Judgment of dismissal shall be entered if the plaintiff fails to bring the action to trial within two years after the case is brought to an issue of law or fact, except where the parties have stipulated in writing that the time may be extended.

§ 894. Affirmative judgment for defendant on counterclaim

Affirmative judgment may be rendered for the defendant on his counterclaim if the defendant proves that he is entitled to more than the plaintiff has proven or if the plaintiff fails to prove that he is entitled to any judgment.

§ 895. Remission of amount exceeding jurisdiction

When the amount found due to either party exceeds the sum for which the magistrate is authorized to enter judgment, that party may remit the excess, and judgment may be rendered for the residue. § 896. Time for entry of judgment

Judgment shall be entered within 30 days after the submission of the case to the court.

§ 897. Form and entry of judgment; arrest; notice of judgment The judgment of a magistrate shall be entered substantially in the form required by section 1703 of this title in an action to recover the possession of personal property. Where the defendant is subject to arrest and imprisonment thereon the fact shall be stated in the judgment. A judgment has no effect for any purpose until so entered.

Notice of the rendition of judgment shall be given to the parties to the action in writing signed by the magistrate. The notice shall be substantially in the form of the abstract of judgment required in section 898 of this title. The notice shall be served upon the parties in the manner provided by section 719 of this title within five days after rendition of the judgment.

§ 898. Abstract of judgment

The magistrate, on the demand of a party in whose favor judgment is rendered, shall give him an abstract of the judgment in substantially the following form (filling blanks according to the facts): Canal Zone, Magistrate's Court, Subdivision of plaintiff, v.

defendant. Judgment entered for plaintiff (or defendant) for $, on the day of

I certify that the foregoing is a correct abstract of a judgment rendered in said action in this court.

Date of abstract

Magistrate.

§ 899. Relief from judgment or order; clerical mistakes; harm

less error

(a) On such terms as may be just, and on payment of costs, the court may relieve a party from a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect, but the application for relief shall be made within 10 days after notice of the entry of the judgment and upon an affidavit showing good cause therefor.

(b) Upon motion of the injured party and notice to the adverse party the magistrate may correct clerical mistakes in his judgment as entered, so as to conform to the judgment ordered. The magistrate may set aside a void judgment upon motion of either party to the action after notice to the adverse party, and thereupon the action shall be treated as if judgment had not been entered.

(c) Rule 61 of the Federal Rules of Civil Procedure, relating to harmless error, applies to the magistrates' courts.

§ 900. Confession of judgment or submission of controversy without action

(a) Judgments upon confession may be entered as provided by section 515 of this title in either magistrate's court specified in the confession.

(b) Section 516 of this title, relating to submission of a controversy without action, applies to the magistrates' courts.

§ 901. Offer of judgment before trial

If the defendant, at any time before the trial, offers in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued. If the plaintiff does not accept the offer before the trial, and fails to recover in the action a sum in excess of the offer, he may not recover costs incurred after the offer, but costs shall be adjudged against him, and, if he recovers, be deducted from his recovery. The offer and failure to accept it may not be given in evidence nor affect the recovery, otherwise than as to costs.

§ 902. Other provisions governing judgments

Sections 511-514 and 631-636 of this title apply to judgments of the magistrates' courts.

Subchapter VII-Execution

§ 921. Time for issuance of execution

Execution for the enforcement of a judgment of a magistrate's court may be issued by the magistrate who entered the judgment, or his successor in office, on the application of the party entitled thereto, at any time within five years from the entry of judgment.

§ 922. Stay of execution

The court, or the magistrate thereof, may stay the execution of any judgment, including any judgment in a case of forcible entry or unlawful detainer, for a period not exceeding 10 days.

§ 923. Contents of execution

The execution shall be directed to the constable, and be subscribed by the magistrate and bear date the day of its delivery to the officer. It shall intelligibly refer to the judgment, by stating the names of the parties, and the name of the magistrate before whom, and of the subdivision where, and the time when it was rendered; the amount of judgment, if it is for money; and, if less than the whole is due, the true amount due thereon. It shall contain, in like cases, simi