Amended Chapt 13 1899

holding said court.

The stipulation must specify the place of trial or hearing,

and must be filed in the office of the clerk. [C. L. §§ 3045-6.

684. Judge pro tempore. Any cause pending in a district court may be tried by a judge pro tempore, who shall be a member of the bar of the supreme court of the state. ['96, p. 94.

Judge pro tempore, Con. art. 8, sec. 5.

685. Id. Appointment. Powers. Whenever all the parties to any cause pending in a district court or their attorneys of record shall enter into a written stipulation appointing a judge pro tempore for the trial of the cause, and the person appointed shall take and subscribe an oath to faithfully try and determine the issues joined between the party or parties plaintiff, naming them, and the party or parties defendant, naming them, and any other parties, if such there be, naming them, it shall be the duty of the clerk of the court in which such action is pending to attach together said stipulation and oath and to place them on file and also to record them at length upon the minutes of the court; whereupon the person appointed shall be vested with the same power and authority and shall be charged with the same duties as to the cause in and as to which he is appointed as though he were the regularly elected and qualified judge of the district court; provided, that parties may, by the terms of their stipulation, limit the power of the judge pro tempore to the trial and determination of any specified issue or issues, either of law or fact, and in such case, the oath of the person appointed shall correspond to the terms of the stipulation. ['96, p. 94.

686. Id. Compensation. Judges pro tempore shall serve without compensation from any public treasury, but it shall be lawful for the parties to agree upon and express in their written stipulation any mode or amount of compensation, together with any further agreement as to the taxing of the same as costs. ['96, p. 94.

CHAPTER 4.

JUSTICES' COURTS.

687. Place of residence and of holding court. Every justice of the peace shall reside in and shall hold a justice's court in the precinct or city for which he is elected; provided, that where more than one precinct is embraced within the limits of any incorporated city or town, the justices of the peace of such precincts may hold court at any place within their respective cities or towns. [C. L. SS 3019*, 3042*; '97, p. 263.

688. Civil jurisdiction. The justices' courts shall have civil jurisdiction within their respective precincts or cities:

1. In actions arising on contract for the recovery of money only, if the sum claimed is less than three hundred dollars.

2. In actions for damages for injury to the person, or for taking or detaining personal property, or for an injury to real property where no issue is raised by the answer involving the plaintiff's title to or possession of the same, if the damages claimed be less than three hundred dollars.

3. In actions for a fine, penalty, or forfeiture, less than three hundred dollars, given by statute or by the ordinances of an incorporated city, where no issue is raised by the answer involving the legality of any tax, impost, assessment, toll. or municipal fine.

4. In actions upon bonds or undertakings conditioned for the payment of money, if the sum claimed is less than three hundred dollars, though the penalty may exceed that sum. When the payments are to be made by instalments, an action may be brought for each instalment as it becomes due.

5. In actions to recover the possession of personal property, when the value of such property is less than three hundred dollars.

6. To take and enter judgment on the confession of a defendant, when the amount confessed is less than three hundred dollars.

Jurisdiction, etc., Con. art. 8, sec. 8. Jurisdiction of city justice under city ordinances. ? 239. Authority to impose a fine in any sum less than three hundred dollars and an imprisonment for a term not exceeding six months, is in excess of the jurisdiction which the legislature could confer on justices of the peace under the organic act. People, ex rel. Yearian, v. Spiers, 4 U. 385; 11 P. 509. The legislature of the territory could confer on justices of the peace no jurisdiction in criminal cases, except that usually exercised by such justices of the peace at the date of the passage of the organic act. Id. Justices of the peace, under the statutes of the territory, have jurisdiction to try an offender charged with the crime of battery. Overruling Yearian v. Spiers, 4 U. 385. People v. Douglass, 5 U. 283; 14 P. 801. A justice of the peace acting within his jurisdiction is not liable for mistakes of judgment, although the facts do not

[C. L. § 3020*.

warrant his conclusion. Marks v. Sullivan, 9 U. 12; 33 P. 224. A justice of the peace cannot include in his judgment interest on the sum claimed from the time the suit was brought, if it makes the total amount of the judgment exceed $300; but the allowance of such interest does not deprive him of original jurisdiction so as to make the judgment void and unappealable. On appeal of such judgment the district court may allow interest on the sum claimed, from the time the suit is brought, though the judgment, on account of such allowance, exceeds the amount for which the justice could have rendered judgment. McCormick Har. Machine Company v. Marchant, 11 U. 68; 39 P. 483.

Jurisdiction of city justice is co-extensive with city. Saunders v. Sioux City N. Co., 6 U. 431; 24 P. 532.

689. Concurrent jurisdiction. The justices' courts shall have concurrent jurisdiction with the district courts within their respective precincts and cities:

1. In actions of forcible entry, forcible detainer, or unlawful detainer, where the whole amount of the rent and damages claimed is less than three hundred dollars.

2. In actions to enforce and foreclose liens on personal property, where the amount of the liens and the value of the property are each less than three hundred dollars. [C. L. § 3021.

Questions of possession of real property may be adjudicated by justices of peace in forcible entry

or detainer actions. Hyndman v. Stowe, 9 U. 23; 33 P. 227.

690. Process to any part of county. Mesne and final process of justices' courts may be issued to any part of the county in which they are held. [C. L. § 3022.

691. Criminal jurisdiction. Justices' courts have jurisdiction of the following public offenses committed within the respective counties in which such courts are established:

2. Assault or battery not charged to have been committed upon a public officer in the discharge of his duties, or to have been committed with such intent as to render the act a felony.

3. Breaches of the peace, committing a wilful injury to property, and all misdemeanors punishable by a fine less than three hundred dollars, or by imprisonment in the county jail or city prison not exceeding six months, or by both such fine and imprisonment. [C. L. § 3023*.

CHAPTER 5.

DISQUALIFICATION OF JUDGES.

692. When disqualified. Except by consent of all parties, no justice, judge, nor justice of the peace shall sit or act as such in any action or proceeding: 1. To which he is a party, or in which he is interested.

2. When he is related to either party by consanguinity or affinity within the third degree, computed according to the rules of law.

3. When he has been attorney or counsel for either party in the action or proceeding. But the provisions of this section shall not apply to the arrangement

of the calendar or the regulation of the order of business, nor to the power of transferring the action or proceeding, to some other court. [C. L. § 3047*.

Disqualification of judge, Con. art. 8, sec. 13.

693. Acting as attorney. A justice of the supreme court, or judge of the district court, cannot act as an attorney or counsel in the court of which he is a judge or in any other court except in an action or proceeding to which he is a party on the record. [C. L. § 3049*.

694. Judge's partner acting as attorney. No judge or other judicial officer shall have a partner acting as attorney or counsel in any court of this state. [C. L. $3050.

CHAPTER 6.

GENERAL PROVISIONS.

695. Sittings public. The sittings of every court of justice are public, except as provided in the next section. [C. L. § 3024.

Right to a speedy public trial, Con. art. 1, sec. 12.

696. Id. Exceptions. In an action for divorce, criminal conversation, seduction, abortion, rape, or assault with intent to commit rape, the court may, in its discretion exclude all persons who are not directly interested therein, except jurors, witnesses, and officers of the court; provided, that in any cause the court may, in its discretion, during the examination of a witness, exclude any and all other witnesses in the cause. [C. L. § 3025*,

697. Powers of courts respecting conduct of proceedings. Every court has power:

1.

To preserve and enforce order in its immediate presence.

2. To enforce order in the proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority.

4.

3. To provide for the orderly conduct of proceedings before it, or its officers. To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.

5. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.

6. To compel the attendance of persons to testify in an action or proceeding pending therein, in the cases and manner provided by law.

To administer oaths in an action or proceeding pending therein, and in all other cases where it may be necessary in the exercise of its powers and duties. 8. To amend and control its process and orders so as to make them conformable to law and justice.

9. To devise and make new process and forms of proceedings consistent with law, necessary to carry into effect the powers and jurisdiction possessed by it. [C. L. § 3026.

Contempts generally,

3358-3373.

698. Rules of court. Every court of record may make rules, not inconsistent with the laws of this state, for its own government and the government of its officers; but such rules must neither impose any tax or charge upon any legal proceeding, nor give any allowance to any officer for services. [C. L. § 3027. 699. Id. Time of taking effect. The rules adopted by any court take

effect thirty days after their publication. [C. L. § 3028.

700. When courts may sit. Courts of justice may be held and judicial business transacted on any day, except as provided in the next section.

§ 3029.

Court open for every purpose connected with the cause when jury is out, 2 3159.

[C. L.

701. Id. What business may be transacted on holidays. No court can be opened nor can any judicial business be transacted on Sunday, on any day on which a general election is held, or on any legal holiday, except for the following purposes:

To give upon their request, instructions to a jury when deliberating on their verdict.

2. To receive a verdict or discharge a jury.

3. For the exercise of the powers of a magistrate in a criminal action, or in a proceeding of a criminal nature; provided, that in civil causes orders of arrest may be made and executed; writs of habeas corpus and attachment, executions, injunctions, and writs of prohibition may be issued and served; proceedings to recover possession of personal property may be had, and suits and processes for obtaining any such writs and proceedings may be instituted, issued, and served, on any day. [C. L. § 3030*.

702. Id. When appointed time of holding court falls on holiday. If any of the days mentioned in the last section happen to be the day appointed for the holding of a court, or to which it is adjourned, it is deemed appointed for, or adjourned to the next day. [C. L. § 3031.

703. Adjournment in absence of judge. If no judge attend on the day appointed for the holding or sitting of a court, or on the day to which it may have been adjourned, before noon, the clerk shall make an entry thereof in his record, and the sheriff or clerk must adjourn the court until the next day at ten o'clock a. m.; and if no judge attend on that day before noon, the sheriff or clerk must adjourn the court until the following day at the same hour, and so on from day to day for one week, unless the judge, by written order or telegram, directs it to be adjourned to some day certain, fixed in said order or telegram, in which case it shall be so adjourned. [C. L. § 3032*.

704. Id. If no judge attend for one week, and no written order or telegram is received adjourning court, the sheriff or clerk shall adjourn the session until the time appointed for the holding of the next regular session. $ 3033.

[C. L.

705. Effect of failure of term or adjournment. When a term of court fails, or is adjourned, or the time or place of holding the same is changed, as prescribed in this chapter, an action, special proceeding, writ, process, recognizance, or other proceeding, civil or criminal, returnable, or to be heard or tried, at that term, is not abated, discontinued, or rendered void thereby; but all persons are bound to appear and all proceedings must be had, at the time and place to which the term is adjourned or changed, or, if it fails, at the next term, with like effect as if the term was held as originally appointed. [C. L. $$ 3034*-5*.

706. Expiration of term during trial. Where the trial or hearing of an issue of fact, joined in an action or special proceeding, civil or criminal, has been commenced at a term of a court of record, it may, notwithstanding the expiration of the time appointed for the term to continue, be continued to the completion thereof; including, if the cause is tried by a jury, all proceedings taken therein until the actual discharge of the jury; or, if it is tried by the court without a jury, until it is finally submitted for a decision upon the merits. Vacancy or failure of term not to affect proceeding, ? 717.

707. Changing place of holding court in certain cases. The judge or judges authorized to hold or preside at a court appointed to be held in a county, city, or town, may, by an order filed with the clerk, and published as he or they may prescribe, direct that the court may be held or continued at any other place in the city, town, or county, than that appointed, when war, insurrection, pestilence, or other public calamity, or danger thereof, or the destruction or danger of the building appointed for holding court, may render it necessary,

and may, in the same manner, revoke the order, and in his or their discretion, appoint another place in the same city, town, or county for holding court. [C. L. § 3036.

Tie in vote for state officers named, legislature to elect, Con. art. 7, sec. 2. 708. If suitable rooms be not provided. If suitable rooms for holding the district court and chambers of the judge of said court, be not provided in the place or places appointed for holding said court in any county, by the board of county commissioners thereof, together with attendants, furniture, lights, and stationery, sufficient for the transaction of business, the court or the judge thereof, may direct the sheriff of the county to provide such rooms, attendants, furniture, fuel, lights, and stationery; and the expenses incurred, certified by the judge to be correct, are a charge against the county treasury, and must be paid out of the general fund thereof. [C. L. § 3038*.

710. Clerk keeps seal. The clerk of the court must keep the seal thereof. [C. L. § 3040.

711. When seal affixed. The seal of the court need not be affixed to any proceeding therein, or document, except:

1. To a writ.

2. To a certificate of the probate of a will, or of appointment of an executor. administrator, or guardian.

3. To the authentication of a copy of a record or other proceeding of a court, or of an officer thereof, or of a copy of a document on file in the office of the clerk. [C. L. § 3041.

712. Powers of judge out of court. A judge may exercise, out of court, all the powers expressly conferred upon a judge as contradistinguished from the court. [C. L. § 3051.

Powers of district judges at chambers, 2 682.

713. Powers of judicial officers as to conduct of proceedings. Every judicial officer has power:

1. To preserve and enforce order in his immediate presence, and in proceedings before him, when he is engaged in the performance of official duty. 2. To compel obedience to his lawful orders as provided by law.

3. To compel the attendance of persons to testify in a proceeding before him, in the cases and manner provided by law.

4. To administer oaths to persons in a proceeding pending before him, and in all other cases where it may be necessary in the exercise of his powers and duties. [C. L. § 3052*.

714. Id. Contempt. For the effectual exercise of the powers conferred by the last preceding section, a judicial officer may punish for contempt in the cases provided by law. [C. L. § 3053*.

715. Subsequent application to another judge. If an application for an order, made to a judge of the court in which the action or proceeding is pending, is refused in whole or in part, or is granted conditionally, no subsequent application for the same order can be made to any other judge, except of a higher court; but nothing in this section applies to motions refused for any informality in the papers or proceeding necessary to obtain the order, or to motions refused, with liberty to renew the same. [C. L. § 3055.

716. Id. Contempt. A violation of the last preceding section may be punished as a contempt, and an order made contrary thereto may be revoked by the judge who made it, or vacated by a judge of the court in which the action or proceeding is pending. [C. L. § 3056.