of such docket, or a certificate by the clerk, under his official seal, showing. such satisfaction, may be filed with the clerk of the district court in any other county where the same may have been docketed, and such clerk shall thereupon make a similar entry on the docket of such judgment, in his county, which shall have the same effect as in the county where the same was originally entered. Wis., S. & B. An. S. (1889) 2 2913.

CHAPTER 37.

JUDGMENT BY CONFESSION.

3213. Confession of judgment for debt or contingent liability. Jurisdiction. A judgment by confession may be entered without action, either for money due or to become due or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. Such judgment may be entered in any court having jurisdiction for like amounts. [C. L. § 3767.

Cal. C. Civ. P. ? 1132.

Offer to allow judgment, effect, 3217.

3214. Verified statement in writing required. A statement in writing must be made, signed by the defendant, and verified by his oath to the following effect:

1. It must authorize the entry of judgment for a specified sum.

2. If the judgment to be confessed be for money due or to become due, it must state concisely the facts out of which the indebtedness arose and show that the sum confessed therefor is justly due or to become due.

3. If the judgment to be confessed be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability and show that the sum confessed therefor does not exceed the same. [C. L. § 3768.

Cal. C. Civ. P. 1133.

A confession of judgment must strictly pursue the statute, and a judgment entered thereon without the sworn statement required by section 3768, C. L. 1888, is void as to creditors of the defendant not made parties to the action. Bacon v. Raybould, 4

U. 357; 10 P. 481; 11 P. 510.

Confession of judgment entered without compliance herewith is void. Warrant of attorney to confess judgment is abrogated by our statute. Utah Nat. Bank v. Sears, 13 U. 172; 44 P. 832.

3215. Id. To be filed with clerk. Entry of judgment. Judgment roll. The statement must be filed with the clerk of the court in which the judgment is to be entered, who must indorse upon it, and enter in the judgment book, a judgment of such court for the amount confessed with costs of entry. The statement and affidavit with the judgment indorsed thereupon becomes the judgment roll. [C. L. § 3769*.

Cal. C. Civ. P. ? 1134*.

Fee, three dollars, 972. Judgment roll, 3197.

3216. Id. In justice's court. Transcript. In a justice's court, where the court has the authority to enter the judgment, the statement may be filed with the justice, who must thereupon enter in his docket a judgment of his court for the amount confessed with costs of entry. If a transcript of such judgment be filed with the clerk of the district court, a copy of the statement must be filed with it. [C. L. § 3770*.

Cal. C. Civ. P. 1135*.

Judgment by confession in justice's court, 3723. Fee, one dollar, ? 978.

CHAPTER 38.

OFFER OF COMPROMISE.

3217. Either party may offer compromise. Effect of acceptance or rejection. Either party in any action may at any time before the trial or judgment, serve upon the adverse party an offer in writing to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the latter accept the offer and give notice thereof within five days, he may file the offer with proof of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn and cannot be given in evidence upon the trial; and if the party refusing the offer fails to obtain a more favorable judgment, he cannot recover costs, but must pay the costs of the adverse party from the time of the offer. [C. L. § 3668*.

Cal. C. Civ. P. 2 997*.

Tender, ?? 3485-3487. Judgment by confession,

?? 3213-3216. Tender and deposit, refusal, costs, 23347.

CHAPTER 39.

SUBMITTING CONTROVERSY WITHOUT ACTION.

3218. Parties may submit case upon agreed statement. Hearing. Parties to a question in difference which might be the subject of a civil action, may without action agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceeding in good faith to determine the rights of the parties. The court must thereupon hear and determine the case and render judgment thereon as if an action were pending. [C. L. § 3771.

Cal. C. Civ. P. 2 1138.

3219. Entry of judgment. Costs. Judgment roll. Judgment must be entered in the judgment book as in other cases, but without costs for any proceeding prior to the trial. The case, the submission, and a copy of the judgment shall constitute the judgment roll. [C. L. § 3772.

3220. Judgment may be enforced or appeal taken as in other cases. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner. $ 3773.

Cal. Civ. C. P. 1140.

[C. L.

CHAPTER 40.

ARBITRATION.

3221. Parties may arbitrate controversy, except title to real property. Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life; this qualification does not.

include questions relating merely to the partition or boundaries of real property. [C. L. § 3865.

Cal. C. Civ. P. 2 1281.

Arbitration of claim against estate of decedent, 3864.

Submission to arbitration of "certain matters in controversy in relation to the title of a certain piece of land" is invalid hereunder. Thygerson v. Whitbeck, 5 U. 406; 16 P. 403.

Provisions of the constitution of an unincorpo3222.

rated association, providing that death claims should be arbitrated by a board whose decision shall be final, constitute merely a revocable agreement to arbitrate, and do not preclude resort to the courts, nor is such a submission to arbitration a condition precedent to action. Daniher v. A. O. U. W., 10 U. 110; 37 P. 245.

Submission to be in writing and acknowledged. Arbitrators. The submission to arbitration must be in writing, duly acknowledged, and may be to one or more persons. [C. L. § 3866*.

Cal. C. Civ. P. ? 1282*.

3223. Id. Entered as order of court. Revocation. Court may compel award. It may be stipulated in the submission that it be entered as an order of the district court, for which purpose it must be filed with the clerk of the district court of the county where the parties, or one of them, reside. The clerk must thereupon enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of submission, when filed, and the time limited by the submission, if any, within which the award must be made. When so entered, the submission cannot be revoked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment. If the submission is not made an order of the court, it may be revoked at any time before the award is made. [C. L. § 3867*.

Cal. C. Civ. P. 1283.

3224. Powers of arbitrators. Arbitrators have power to appoint a time and place for hearing, to adjourn from time to time, to administer oaths to witnesses, to hear the allegations and evidence of the parties, and to make an award thereon. [C. L. § 3868.

Cal. C. Civ. P. ? 1284.

3225. Witnesses compelled to appear as in other cases. Witnesses may be compelled to appear before such arbitrators by subpoena to be issued by the clerk of the district court, in the same manner and with like effect, and subject to the same penalties for disobedience, as in other cases.

N. Dak. (1895) 5984*.

Contempts before other than judicial officers, punishment, 3372.

3226. All arbitrators must meet; majority controls. Oaths. All the arbitrators must meet and act together during the investigation, but when met, a majority may determine any question. Before acting they must be sworn before an officer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation to the matters in controversy, and to make a just award according to their understanding. [C. L. § 3869.

Cal. C. Civ. P. ? 1285.

When three arbitrators, all must meet, but majority may act, 2 3481.

3227. Award to be in writing and signed. Becomes a judgment, when. The award must be in writing, signed by the arbitrators or a majority of them, and delivered to the parties. When the submission is made an order of the court, the award must be filed with the clerk and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit showing that notice of filing the award has been served on the adverse party or his attorney at least four days prior to such application, and that no order staying the entry of judgment has been served, the award must be entered by the clerk in the judgment book, and thereupon has the effect of a judgment. [C. L. § 3870.

Cal. C. Civ. P. 1286.

3228. When award may be vacated. The court, on motion, may vacate the award upon any of the following grounds, and may order a new hearing before the same arbitrators, or not, in its discretion:

2.

1. That it was procured by corruption or fraud or other undue means. That the arbitrators were guilty of misconduct or committed gross error in refusing on cause shown, to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced.

3. That the arbitrators exceeded their powers in making their award; or that they refused or improperly omitted to consider a part of the matters submitted to them; or that the award is indefinite or cannot be performed. § 3871.

Cal. C. Civ. P. ? 1287*.

[C. L.

3229. When award may be modified or corrected. The court may, on motion, modify or correct the award when it appears:

1. That there was a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein.

2. When a part of the award is upon matters not submitted, which part can be separated from other parts and does not affect the decision on the matters submitted.

3. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded. [C. L. § 3872.

Cal. C. Civ.. P. 1288.

3230. Id. Decision on motion, when appealable. The decision upon the motion is subject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment, if entered before a motion is made, cannot be subject to appeal. [C. L. § 3873.

Cal. C. Civ. P. 1289.

3231. Damages for revoking submission, limited. If a submission to abitration be revoked and an action be brought therefor, the amount to be recovered can only be the costs and the damages sustained in preparing for and attending the arbitration. [C. L. § 3874.

Cal. C. Civ. P. § 1290.

CHAPTER 41.

EXECUTION.

3232. Execution may issue at any time within five years. The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement. § 3419.

[C. L.

tion may be issued upon a judgment at any time within three years, is intended as a statute of limitation and repose. Livingston v. Paxton, 2 U. 481. Court has no power to issue execution after time limited. Id.

3233. Requirements of execution. The writ of execution must be issued in the name of the state of Utah, sealed with the seal of the court and subscribed by the clerk, and must be directed to the sheriff of the county in which the writ is to be executed, and must intelligibly refer to the judgment, stating the court, the county where the judgment roll is filed, the names of the parties, the judgment, and, if it be for money, the amount thereof, and the amount actually due thereon, and if made payable in a specified kind of money or currency

as provided in section thirty-one hundred and ninety-four, the execution must also state the kind of money or currency in which the judgment is payable and must require substantially as follows:

1. If it be against the property of the judgment debtor it must require the officer to satisfy the judgment, with interest, out of the personal property of such debtor; and if sufficient personal property cannot be found, then out of his real property; or if the judgment be a lien upon real property, then out of the real property belonging to him on the day when the judgment was docketed, or at any time thereafter; or if the execution be issued to a county other than the one in which the judgment was recovered, on the day when the transcript of the docket was filed in the office of the recorder of such county, stating such day, or any time thereafter.

2. If it be against real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees, it must require the officer to satisfy the judgment, with interest, out of such property.

3. If it be against the person of the judgment debtor, it must require the officer to arrest such debtor, and commit him to the jail of the county until he pay the judgment with interest or be discharged according to law.

4. If it be issued on a judgment made payable in a specified kind of money or currency as provided in section thirty-one hundred and ninety-four, it must also require the officer to satisfy the same in the kind of money or currency in which said judgment is made payable, and the officer must refuse payment in any other kind of money or currency; and in case of levy and sale of the property of the judgment debtor he must refuse payment from any purchaser at such sale in any other kind of money or currency than that specified in the execution. The officer collecting money or currency in the manner required by this chapter must pay to the plaintiff or party entitled to recover the same kind of money or currency received by him, and in case of neglect or refusal so to do, he shall be liable on his official bond to the judgment creditor in three times the amount so collected.

5. If it be for the delivery of the possession of real or personal property, it must require the officer to deliver the possession of the same, describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs, damages, rents, or profits recovered by the same judgment out of the personal property of the person against whom it was rendered, and the value of the property for which the judgment was rendered to be specified therein; if a delivery thereof cannot be had, and if sufficient personal property cannot be found, then out of the real property, as provided in the first subdivision of this section. [C. L. § 3420*.

Cal. C. Civ. P. ? 682*. Writ of possession, 2915. Duties of sheriff on receiving process, ?? 575, 583-587, 591-594. The

style of all process shall be, "The State of Utah," Con. art. 8, sec. 18.

3234. Property liable where joint defendants not all served. When a writ of execution is issued on a judgment recovered against two or more persons in an action upon a joint contract, in which action all the defendants were not served with summons or did not appear, it must direct the sheriff to satisfy the judgment out of the joint property of all the defendants and the individual property only of the defendants who were served or who appeared in the action.

Mont. Civ. P. ? 1212.

ants, 2918, 2954, 3201 Contribution as between

Action against joint and joint and several defend- joint debtors, ? 3270.

3235. Execution, when returnable. "Execution book." Entries. The execution may be made returnable at any time not less than ten nor more than sixty days after its receipt by the officer, to the clerk with whom the judgment roll is filed. When the execution is returned the clerk must attach it to the judgment roll. If any real estate be levied upon, the clerk must record the execution and the return thereto at large, and certify the same under his hand