384. Allowance of injunction. Sec. 386. When defendant may be restrained 385. Service of the order allowing the 388. Motion to vacate or modify injunc nent injunction SEC. 383. An injunction is an order requiring a defendant in an Definition of, action to refrain from a particular act. It is only allowed as a provi- and how permasional remedy, and when a judgment is given enjoining a defendant, enforced. such judgment shall be effectual and binding on such defendant without other proceeding or process, and may be enforced, if necessary, as provided in section three hundred and eighty-one. Allowance of in SEC. 384. An injunction may be allowed by the court or judge thereof at any time after the commencement of the action and before junction. judgment. Before allowing the same the court or judge shall require of the plaintiff an undertaking, with one or more sureties, to the effect that he will pay all costs and disbursements that may be decreed to the defendant and such damages, not exceeding an amount therein specified, as he may sustain by reason of the injunction if the same be wrongful or without sufficient cause. SEC. 385. The undertaking and affidavits, if any, upon which the njunction is allowed, shall be filed with the clerk. The order may be served as a summons and returned to the clerk, with a proof of service indorsed thereon, except that the service shall be made upon the defendant personally. The order may be filled with the clerk at once, and shall be deemed to be served upon the defendant from the date of its allowance, if it appear therefrom that the defendant appeared before the court or judge at the allowance thereof. Service of the order allowing the injunction. When defendant SEC. 386. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, may be restrained consists in restraining the commission or continuance of some act the during the pendency of the accommission or continuance of which during the litigation would pro- tion. duce injury to the plaintiff; or when it appears by affidavit that the defendant is doing, or threatens or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights concerning the subject of the action, and tending to render the judgment ineffectual; or when it appears by affidavit that the defendant threatens or is about to remove or dispose of his property, or any part thereof, with intent to delay or defraud his creditors, an injunction may be allowed to restrain such act, removal, or disposition. Allowance of in SEC. 387. An injunction shall not be allowed after the defendant has answered, except upon notice, but in such case the defendant may junction after anbe restrained until the decision of the court or judge allowing or re- swer. fusing the injunction; and before answer, if the court or judge deem it proper that the defendant should be heard before allowing an injunction, an order may be made requiring the defendant to show cause, at a specified time and place, why the injunction should not be allowed, and in the meantime the defendant may be restrained. Motion to vacate SEC. 388. If the injunction be allowed without notice, the defendant may, at any time after answer, and before trial, apply, upon notice, to or modify injuncthe court or judge thereof, to vacate or modify the same. The appli- tion. cation may be made upon affidavits in addition to the answer, and if so, the plaintiff may oppose the same by affidavits, or other evidence, in addition to those upon which the injunction was allowed. If, upon the hearing of the motion, it satisfactorily appear that the injunction should not have been allowed, either in whole or in part, it shall be vacated or modified accordingly. 391. Where two or more liens upon the 395. Nature of judgment where debt pay able in installments some of which not due. 396. Effect of payment before sale. Liens upon real SEC. 389. A lien upon real property, other than that of a judgment, property, how whether created by mortgage or otherwise, shall be foreclosed, and foreclosed. the property adjudged to be sold to satisfy the debt secured thereby, by an action of an equitable nature. In such action, in addition to the judgment of foreclosure and sale, if it appear that a promissory note or other personal obligation for the payment of the debt has been given by the mortgagor or other lien debtor, or by any other person as principal or otherwise, the court shall also adjudge a recovery of the amount of such debt against such person or persons, as the case may be, as in the case of an ordinary judgment for the recovery of Parties defend ant. Where two or money. SEC. 390. Any person having a lien subsequent to the plaintiff upon the same property or any part thereof, or who has given a promissory note or other personal obligation for the payment of the debt or any part thereof, secured by the mortgage or other lien which is the subject of the action, shall be made a defendant in the action, and any person having a prior lien may be made defendant, at the option of the plaintiff, or by the order of the court when deemed necessary. SEC. 391. When it is adjudged that any of the defendants have a more liens upon lien upon the property, the court shall make a like judgment in relathe same property. tion thereto and the debt secured thereby as if such defendant were a plaintiff in the action; and when a judgment is give.. foreclosing two or more liens upon the same property or any portion thereof in favor of different persons not united in interest, such judgment shall determine and specify the order of time, according to their priority, in which the debts secured by such lien shall be satisfied out of the proceeds of the sale of the property. How judgment enforced. SEC. 392. The judgment may be enforced by execution as an ordinary judgment for the recovery of money, except as in this section otherwise or specially provided: First. When a judgment of foreclosure and sale is given, an execution may issue thereon against the property adjudged to be sold. If the judgment is in favor of the plaintiff only, the execution may issue as in ordinary cases, but if it be in favor of different persons not united in interest, it shall issue upon the joint request of such persons, or upon the order of the court or judge thereof, on the motion of either of them: Second. When the judgment is also againt the defendants or any one of them in person, and the proceeds of the sale of the property upon which the lien is foreclosed is not sufficient to satisfy the judg ment as to the sum remaining unsatisfied to either, the judgment may be enforced by execution as in ordinary cases. When in such case the judgment is in favor of different persons not united in interest, it shall be deemed a separate judgment as to such persons, and may be enforced accordingly. SEC. 393. A judgment of foreclosure shall have the effect to bar the Property sold equity of redemption, and property sold on execution issued upon a upon foreclosure, judgment may be redeemed in like manner and with like effect as real how redeemed. property sold on an execution issued on a judgment. SEC. 394. During the pendency of an action for the recovery of a Action for foredebt secured by any lien mentioned in section three hundred and closure can not be eighty-nine, an action can not be maintained for the foreclosure of maintained during such lien, nor thereafter, unless judgment be given in such action that for the debt. pendency of action the plaintiff recover such debt or some part thereof, and an execution thereon against the property of the defendant in the judgment is returned unsatisfied in whole or in part. ments some of SEC. 395. When an action is commenced to foreclose a lien by which Nature of judga debt is secured, which debt is payable in installments, either of ment where debt. interest or principal, and any of such installments is not then due, the payable in installcourt shall adjudge a foreclosure of the lien, and may also adjudge a which not due. sale of the property for the satisfaction of the whole of such debt, or so much thereof as may be necessary to satisfy the installment then due, with costs of action; and in the latter case the judgment of foreclosure as to the remainder of the property may be enforced by an order of sale, in whole or in part, whenever default shall be made in the payment of the installments not then due. Effect of pay SEC. 396. If, before a judgment is given, the amount then due, with the cost of action, is brought into court and paid to the clerk, the ment before sale. action shall be dismissed, and if the same be done after judgment and before sale, the effect of the judgment as to the amount then due and paid shall be terminated, and the execution, if any have issued, be recalled by the clerk. When an installment not due is adjudged to be paid, the court shall determine and specify in the judgment what sum shall be received in satisfaction thereof, which sum may be equal to such installment, or otherwise, according to the present value thereof. The provisions of this chapter as to liens upon personal property are not to be construed so as to exclude a person having such a lien from any other remedy or right in regard to such property. Who may maintain an action for partition. Complaint, what it shall contain. What lien cred defendants, etc. SEC. 397. When several persons hold and are in possession of real property as tenants in common, in which one or more of them have an estate of inheritance, or for life or years, or when several persons hold as tenants in common a vested remainder or reversion in any real property, any one or more of them may maintain an action of an equitable nature for the partition of such real property, according to the respective rights of the persons interested therein, and for a sale of such property, or a part of it, if it appears that a partition can not be had without great prejudice to the owners. SEC. 398. The interest of all persons in the property, whether such persons be known or unknown, shall be set forth in the complaint, specifically and particularly, as far as known to the plaintiff; and if one or more of the parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff, or be uncertain or contingent, or the ownership of the inheritance depend upon an executory device, or the remainder be a contingent remainder, so that such parties can not be named, that fact shall be set forth in the complaint. SEC. 399. The plaintiff shall make creditors having liens upon the itors may be made property or any portion thereof, defendants in the action. When the lien is upon an undivided interest or estate of any of the parties, such lien, if a partition be made, is thenceforth a lien only upon the share assigned to such party, but such share shall be first charged with its just proportion of the costs of the partition, in preference to such lien. Summons, how SEC. 400. The summons shall be directed by name to all the tenants in common who are known, and in the same manner to all lien cred- directed. itors who are made parties to the action, and generally to all persons unknown, having or claiming an interest or estate in the property. SEC. 401. If a party having a share or interest in or lien upon the Upon whom property be unknown, or either of the known parties reside out of the summons may be served by publicadistrict or can not be found therein, and such fact be made to appear tion. by affidavit, the summons may be served upon such absent or unknown party by publication, directed by the court or judge, as in ordinary cases. When service of the summons is made by publication, it must be accompanied by a brief description of the property which is the subject of the action. SEC. 402. The defendant shall set forth in his answer the nature and extent of his interest in the property, and if he be a lien creditor, how such lien was created, the amount of the debt secured thereby, and remaining due, and whether such debt is secured in any other way, and if so, the nature of such other security. Answer, what to contain. Rights of the SEC. 403. The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried, and determined in such action, parties may be put and where a defendant fails to answer, or where a sale of the property in issue, etc. is necessary, the title shall be ascertained by proof to the satisfaction of the court before the judgment for partition or sale is given. SEC. 404. If it be alleged in the complaint and established by evi- When order of dence, or if it appear by the evidence, without such allegation in the instead of partisale may be made complaint, to the satisfaction of the court, that the property, or any tion. part of it, is so situated that partition can not be made without great prejudice to the owners, the court may order a sale thereof, and for that purpose may appoint one or more referees. Otherwise, upon the requisite proofs being made, it shall adjudge a partition according to the respective rights of the parties, as ascertained by the court, and appoint three referees therefor, and shall designate the portion to remain undivided for the owners whose interests remain unknown or not ascertained. How referees to SEC. 405. In making the partition the referees shall divide the property and allot the several portions thereof to the respective parties, make partition. quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, designating the several portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid them therein. The referees shall make a report of their proceedings, specifying therein the manner of executing their trust, describing the property divided and the shares allotted to each party, with a particular description of each share. Proceedings on SEC. 406. The court may confirm or set aside the report in whole or in part, and if necessary appoint new referees. Upon the report being report of referees. confirmed, a judgment shall be given that such partition be effectual forever, which judgment shall be binding and conclusive First. On all parties named therein, and their legal representatives, who have at the time any interest in the property divided, or any part thereof, as owners in fee, or as tenants for life or for years, or as entitled to the reversion, remainder, or inheritance of such property or any part thereof after the termination of a particular estate therein, or who by any contingency may be entitled to a beneficial interest in the property, or who have an interest in any undivided share thereof as tenants for years or for life; Second. On all persons interested in the property who may be unknown, to whom notice shall have been given of the application for partition by publication, as directed by section four hundred and one; and Third. On all other persons claiming from such parties or persons, or either of them. |