SEC. 460.

To be in writing.

writing, and

The submission to arbitration shall be in may be to one or more persons.

SEC. 461. It may be stipulated in the submission that it be entered as an order of the probate court or of the district court, for which purpose it shall be filed with the clerk of the court. The clerk shall thereupon enter into May be made his register of actions a note of the submission, with the

an order

court.

Of the award.

Powers of arbitrators.

Action of arbitrators.

To be sworn.

names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award shall be made. When so entered the submission shall not 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 be not made an order of the court, it may be revoked at any time before award is made.

SEC. 462. Arbitrators shall have power to appoint a time and place for hearing; to adjourn from time to time; to administer oaths to witnesses; to hear allegations and evidence of the parties, and to make award thereon.

SEC. 463. All the arbitrators shall meet and act together during the investigation; but when met, a majority may determine any question. Before acting they shall 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 matter in controversy, and to make a just award according to their understanding.

SEC. 464. The award shall be in writing, signed by the arbitrators, or a majority of them, and delivered to in writing the parties. When the submission is made an order of

and filed.

the court, the award shall 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 judg

When to have

ment.

ment has been served, the award shall be entered by the effect of judgclerk in the judgment book, and shall thereupon have

the effect of a judgment.

SEC. 465. The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, at its discretion:

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

per

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

SEC. 466. The court may, on motion, modify or correct the award where it appears —

First. 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.

Second. 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.

Third. When the award, though imperfect in form, could have been amended if it had been a verdict or the imperfection disregarded.

court as to award may appealed from.

SEC. 467. The decison upon the motion shall be subject to appeal in the same manner as an order which is Decision of subject to appeal in a civil action; but the judgment entered before motion is made shall not be subject to appeal. SEC. 468. If a submission to arbitration be revoked and an action be brought therefor, the amount to be recovered shall only be the costs and damages sustained in be revoked. preparing for and attending the arbitration.

Recovery in case decision

Order defined

Motions

CHAPTER VI.

SEC. 469. Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a

motion.

SEC. 470. Motions shall be made in the county in which the action is brought, or in any adjoining county in the same district: Provided, however, That in case where made. of the absence of the judge of the district from his district, such motion may be made before the judge of any adjoining district. Written notice of a motion, as provided in this act, shall only be required in case of a motion made out of term time. Notice of a motion made in term time, except those made during the progress of a trial, shall be entered in a book to be kept for that purpose, and called the "motion book;" and such motion shall be for hearing after twenty-four hours from the time such notice is entered in the motion book.

Notice of motion.

SEC. 471. When a written notice of a motion is necessary, it shall be given, if the court be held in the Time in which same district with both parties, five days before the time appointed for the hearing, otherwise ten days; but the court or judge may prescribe a shorter time.

notice shall

given.

Motions to

show cause

SEC. 472. When a notice of motion is given, or an order to show cause is made returnable before a judge out of court, and at the time fixed for the motion, or on and transfer the return day of the order, the judge is unable to hear the parties, the matter may be transferred by his order to some other judge before whom in might originally have been brought.

of to

judge.

other

Enforcement

SEC. 473. Whenever an order for the payment of a sum of money is made by a court, pursuant to the proof order to visions of this code, it may be enforced by execution in the same manner as if it were a judgment.

pay money.

Service of no

tices to be in writing.

CHAPTER VII.-Notices and Filing and Service of

Papers.

SEC. 474. Notices must be in writing, and notices

and other papers may be served upon the party or attor

ney in the manner prescribed in this chapter, when not otherwise provided by this code.

SEC. 475. The service may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be as follows:

First. If upon an attorney, it may be made during his absence from his office by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them, between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office; or if it be not open so as to admit of such service, then by leaving them at the attorney's residence with some person of suitable age and discretion; and if his residence be not known, then by putting the same, enclosed in an envelope, into the post office, directed to such attorney.

Second. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion; and if his residence be not known, by putting the same, enclosed in an envelope, into the post office, directed to such party.

SEC. 476. Service by mail may be made when the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail.

SEC. 477. In case of service by mail the notice or other paper shall be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. And in such case the time of service shall be increased one day for every twenty-five miles distance between the place of deposit and the place of address: Provided, That service in any case shall be deemed complete at the end of forty days from the date of its deposit in the post office.

SEC. 478. A defendant shall be deemed to appear in action when he answers, demurs, or gives the plaintiff a

After defend

ant has ap

peared all no

tices given to

him or his attorney.

Notices when non-resident defendant has appeared.

Application

of the forego

written notice of his appearance, or when an attorney gives notice of an appearance for him. After appearance, a defendant, or his attorney, shall be entitled to notice of all subsequent proceedings of which notice is required to be given. But when a defendant has not appeared, service of notice or papers need not be made upon him, unless he be imprisoned for want of bail.

SEC. 479. When a plaintiff or a defendant who has appeared resides out of the territory and has no attorney in the action or proceeding, the service may be made on the clerk for him. But in all cases where the party has an attorney in the action or proceeding, the service of papers when required shall be upon the attorney instead of the party, except of subpoenas, writs, and other process, issued in the suit, and of papers to bring him into contempt.

SEC. 480. The foregoing provisions of this chapter ing provis do not apply to the service of a summons or other process, or of any paper to bring a party into contempt.

ious as to notices.

of attorneys.

CHAPTER VIII.-Of Costs.

SEC. 481. The measure and mode of compensation of attorneys and counsellors shall be left to the agreement, Compensation express or implied, of the parties; but there shall be allowed to the prevailing party in any action in the supreme court, district courts, and probate courts, his costs and necessary disbursements in the action or special proceeding in the nature of an action.

Costs.

When costs al

SEC. 482. Cost may be allowed, of course, to the plaintiff upon a judgment in his favor, in the following

cases:

First. In an action for the recovery of real property. Second. In an action to recover the possession of lowed plain- personal property when the value of the property amounts to fifty dollars or over. Such value shall be determined by the jury, court, or referee by whom the action is tried.

tiff of right.

Third. In an action for the recovery of money or damages when plaintiff recovers fifty dollars and over.