Page:United States Statutes at Large Volume 76A.djvu/435

–339– -339(c) The notice shall be served upon all parties who have appeared in the manner provided by section 719 of this title. I t 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 anotner 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.

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