Page:United States Statutes at Large Volume 76A.djvu/436

–340– -340(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 eflfect, 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) \yhen 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

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