Page:United States Statutes at Large Volume 47 Part 1.djvu/1013

 72d C ONGRESS. SESS. II. CH. 127. F EBRU ARY 27, 19 33. J UDGM ENT BY DEFAULT IN MAGISTRATES' COURTS 989 Judgment by de. fault. SEC. 447. JUDGMENT WHEN DEFENDANT FAILS TO AP PEAR .-I f the Failure of defendant defendant fails to appear and to answer or demur within the tim e to appear. s pecified in the summons, then, up on proof of servi ce of summons, the foll owi ng p roce edin gs m ust be had 1. If the action is bas ed u~ on a contra ct, and is for the recovery of money, or d amages only, the court must ren der judgment in favor of plaintiff for the sum specified in the summons. 2 . In all other actions the court must hear the evidence offered by the pla inti ff, and must re nder jud gmen t in his fa vor for suc h sum (not exceeding the amount stated in the summons), as appears by such evidence to be just. SEC. 448. JUDGMENT BY DEFAULT.-III the f ollo wing cas es the same Other cases, when must be rendered. proceedings must be had and judgment mu st be rendered in like mann er as if the de fen dant had fai led to appe ar and answ er, or demur 1. If the complaint has been amended, and the defendant fails to answer it, as amended, within the time al lo wed by the court ; 2. If the dem urre r to the co mpla int is over rul ed, and the defendant fails to answer within the time allowed by the court, not to exceed five days ; 3. If the dem urre r to the an swer is sust aine d and the d efen dant fails to amend the answer within the ti me allowed by the court. TIME OF TRI AL AND POSTPONE MENTS IN MAGIST RATES' COURTS Time of trial and po stp on eme nts . SEC. 449. TI ME W HEN TRI AL M UST BE COMM ENC ED. -Unl eSS Post - poned, as provided in this subchapter, or unless transferred to the other subdivision, the trial of the action must commence at the expira- tion of one hour from the time specified in the notice mentioned in sec tion 425, and the t rial mu st be co ntin ued, wi thou t ad jour nmen t for more th an twenty-four ho urs at any one ti me, until all the issues therein are disposed of. SEC. 450. WHEN COURT MAY, OF ITS OWN MOT IO N, POSTPONE TRIAL .- Pos tpon ement. The court m ay, of its own m otion, postpone the trial- 1. For not exceeding 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 ; 2. For not e xcee ding two da ys, if, by an amendment of the pleadings, or the allowance of time to ma ke such amendment or to ple ad, a po stp onem ent is. render ed necessary. SEC. 451. POSTPONEMENT BY CONSENT .-The court may, by consent By consent. of the parties, given in writing or in open court, postpone the trial to a time agreed up on by the parties. SEC. 452. POS TPON EME NT U PON APPL ICA TION OF A P ARTY .- The tria l Upon applicati on of may be postponed upon the application of either party, for a period a party. not exceeding fou r months : 1. The p arty mak ing the app lica tion mu st prove, by his own oa th or oth erwi se, that he can not , for wa nt of ma ter ial test imon y, w hich he expec ts to procure, sa fely proceed to t rial, and must s how in what respect the testimony expected is material, and that he has us ed due dili gence to procure it and has been u nable to do so 2. If the application is on the part of the plaintiff, and the defendant is under arrest, a postponement for mo re t han three hours discharges the defendant from custody, but the action may proceed notwithstanding, and the defenda nt is subject to arrest on executio n, in the same m anner as if he had not been dis charged ;