Page:United States Statutes at Large Volume 47 Part 1.djvu/978

 954 72d CONGRESS. SESS. II. CH. 127. FEBRUARY 27, 1933 . ever plaintiff has failed for two years after answer filed to bring such action to trial. JUDGMENT UPON FAILURE TO ANSWER Judgment upon fail. ure to answer. If defendant fails. Issues ; mode of trial ISSUES ; MODE OF TRIAL AND POSTPONEMENTS and postponements. "I ssue, " def ined. SEC. 270. ISSUE DEFINED, AND THE DIFFERENT IUNDS .-Issues arise upon the pleadings when a fact or a conclusion of law is maintained by the one, pa rty and is controverted by the other. Th ey are of two kind s 1. Of law ; and, 2. Of fact. How raised. SEC. 271. ISSUE OF LAW, HOW RAISED.-An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. SEC. 272. ISSUE OF FACT, HOW RAISED .-An issue of fact arises- 1 . Upon a material allegation in the complaint controverted by the answer ; and. Issue of law . Kinds. Issue of fact. SEC. 269 . JUDGMENT IF DEFENDANT FAILS TO ANSWER .-Judgment may be had, if the defendant fa ils to answer the complaint, as follows : 1 . In an action arising upon contract for the recovery of money or damages only, if the defendant has been personally served and no answer has been filed with the clerk of the court within the time specified in the summo ns, or such further time as may have been granted, the clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judg- ment for the amount demanded in the complaint, including the costs, against the defendant, or against one or more of several defendants, in the cases provided for in section 120. 2 . In other actions, if the defendant has been personally served and no answer has been filed with the clerk of the court within the time specified in the s ummons, or such further time as may have been grante d, the c lerk must enter t he defau lt of th e defend ant ; and there- after the plaintiff may apply to the court'for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, is necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may ; in its discretion, order a reference for that purpose. And where the action is for the recovery of damages, in whole or in part, the court may order the damages to be assessed by a jury ; or if, to determine the amount of damages, the examination of a long account is involved, by a reference as above provided. 3 . In all actions where the service of the summons was by publi- cation, the plaintiff 'upon the expiration of the time for answering, may, upon proof of the publication, and th at no answer has been filed, apply for judgment ; and the court must there upon require proof to be made of the allegations of the complaint ; and if the defendant is not a resident of the Zone, must require the plaintiff, or his agent, to be examined, on oath, respecting any payments that have been made to the plaintiff, or to anyone for his use, on account of aWe, emand mentioned in the complaint, and may render judgment for amount which he is entitled to recover ; provided, that, in acti ons in volvi ng me rely the po ssess ion o f real prop erty where the complaint is verified and shows by proper allegations that no party to the action claims title to the real property involved, either by accession, transfer, will, or succession but only the possession thereof, the court may rend er judgment upon proof o f occupancy by plain- tiff and ouster by defendant.