to dismiss the action, or for judgment, as in case of nonsuit. If the motion is allowed the plaintiff may except and appeal to the supreme court. If the motion is refused the defendant may except, and if the defendant introduces no evidence the jury shall pass upon the issues in the action, and the defendant shall have the benefit of his exception on appeal to the supreme court. But after the motion is refused he may waive his exception and then introduce his evidence just as if he had not made the motion. But he may again move to dismiss after all the evidence on both sides is in. If the motion is then refused, upon consideration of all the evidence, he may except, and after the jury shall have rendered its verdict, he shall have the benefit of such latter exception on appeal to the supreme court. 1897, c. 109: 1899, c. 131; 1901, c. 594. 540. Jury trial waived, how. Trial by jury may be waived by the several parties to an issue of fact, in actions on contract, and with the assent of the court in other actions in the manner following: 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent, entered in the minutes. Code, s. 416; C. C. P., s. 240. Note. See subchapter herein, Controversy Without Action, ss. 803-805. 541. Findings of fact and conclusions of law by judge. Upon the trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law separately; and upon a trial of an issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such decision shall be filed with the clerk during the court at which the trial takes place. Judgment upon the decision shall be entered accordingly. Code, s. 417; C. C. P., s. 241. 542. Exceptions, when and how taken. 1. For the purposes of an appeal, either party may except to a decision on a matter of law arising upon such trial within ten days after the judgment, in the same manner and with the same effect as upon a trial by jury: Provided, that where the decision does not authorize a final judg ment, but directs further proceedings before a referee or otherwise, either party may except thereto, and make a case or exception as above provided in case of an appeal. 2. And either party desiring a review, upon the evidence appearing on the trial of the questions of law, may at any time within ten days after the judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge, in settling the case must briefly specify the facts found by him, and his conclusions of law. Code, s. 418; C. C. P., s. 242. 543. Proceedings upon judgment on issue of law. On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the first two subdivisions of section numbered five hundred and fifty-six, upon failure of the defendant to answer, where the summons was personally served. If judg ment be for the defendant, upon an issue of law, and if taking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a reference or assessment by jury may be ordered, as provided in section numbered five hundred and fifty seven. Code, s. 419: C. C. P., s. 243. XXII. ISSUES. 544. Defined. Issues arise upon the pleadings, when a material fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds: 1. Of law; and, 2. Of fact. Code, s. 391; C. C. P., s. 219. 545. Of law. An issue of law arises upon a demurrer to the complaint, answer or reply, or to some part thereof. Code, s. 392; C. C. P., s. 220. 546. Of fact. An issue of fact arises 1. Upon a material allegation in the complaint controverted by the answer; or, 2. Upon new matter in the answer, controverted by the reply; or, 3. Upon new matter in the reply, except an issue of law is joined thereon. Code, s. 393; C. C. P., s. 221. 547. Which to be first tried. Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases the issues of law must be first tried, unless the court otherwise directs. Code, s. 394; C. C. P., s. 222. 548. When and by whom made up. The issues arising upon the pleadings, material to be tried, shall be made up by the attor neys appearing in the action, and reduced to writing, or by the judge presiding, before or during the trial. Code, s. 395. 549. Form. Issues shall be framed in concise and direct terms, and prolixity and confusion must be avoided, by not having too many issues. Code, s. 396. XXIII. VERDICT. 550. General and special. A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. Code, s. 408; C. C. P., s. 232. 551. Character of, for different actions. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant by his answer claims a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff; or if they find in favor of the defendant, and that he is entitled to a return thereof, they may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property. In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues; and in all cases may instruct them if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes. Code, s. 409; C. C. P., s. 233. 552. Special controls general. Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly. Code, s. 410; C. C. P., s. 234. 553. Jury to assess damages, when; counterclaim. When a verdiet is found for the plaintiff in an action for the recovery of money, or for the defendant when a counterclaim for the recovery of money is established, beyond the amount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court gives judgment for the plaintiff on the answer. If a counterclaim, established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly. Code, s. 411; C. C. P., s. 235. 554. Entry of; motion for new trial; exceptions, when and how taken. 1. Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further consideration. If a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict. 2. If an exception be taken upon the trial, it must be reduced to writing at the time with so much of the evidence or subject matter as may be material to the exception taken; the same shall be entered in the judge's minutes and be filed with the clerk as a part of the case upon appeal. 3. If there shall be error, either in the refusal of the judge to grant a prayer for instructions, or in granting a prayer, or in his instructions generally, the same shall be deemed excepted to without the filing of any formal objections. 4. The judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion can only be heard at the same term at which the trial is had. When such motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had. Code, s. 412; C. C. P., s. 236. XXIV. JUDGMENT. 555. Defined. A judgment is either interlocutory, or the final determination of the rights of the parties in the action. Code, s. 384; C. C. P., s. 216. 556. By default final, when. Judgment by default final may be had on failure of defendant to answer, as follows: 1. Where complaint sets forth one or more causes of action, each consisting of the breach of an express or implied contract to pay, absolutely or upon a contingency, a sum or sums of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation. Upon proof of personal service of summons, or of service of summons by publication, on one or more of the defendants, and upon the complaint being verified, judgment shall be entered at the return term for the amount mentioned in the complaint, against the defendant or defendants, or against one or more of several defendants. 2. Where the defendant, by his answer in such action, shall not deny the plaintiff's claim, but shall set up a counterclaim, amounting to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of said claim over the said counterclaim, in like manner in any such action, upon the plaintiff's filing with the court a statement admitting such counterclaim, which statement shall be annexed to and be a part of the judgment roll. 3. In actions where the service of the summons was by publication, the plaintiff may, in like manner, apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the state, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff, or to any one for his use on account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment the court may in its discretion require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under and by virtue of said judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense. 4. In actions for the recovery of real property, or for the possession thereof, upon the failure of the defendant to file the undertaking required by law, or upon failure of his sureties to justify according to law, unless the defendant is excused from giving such undertaking before answering. Code, ss. 385, 390; C. C. P., s. 217; 1870-1, c. 42; 1869-70, c. 193, s. 4. 557. By default and inquiry. In all other actions, except those mentioned in the preceding section, when the defendant shall fail to answer, and upon a like proof, judgment by default and inquiry may be had at the return term, and inquiry shall be executed at the next succeeding term. If the taking of an intricate or long account be necessary to execute properly the inquiry, the court, at |