Page:1862 Territory of Dakota Session Laws.pdf/161

144 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.

. 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.

. 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.

. 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.

. 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.

. 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.