2. That the summons or other process was delivered, with the intent that it should be actually served, to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But an action shall be deemed commenced for all purposes, at the time the complaint is verified, provided that the summons or other process thereupon issued, be delivered to the sheriff or other officer, on the same or next five succeeding days, and be followed by the actual service thereof, on the defendants or one or more of them. where de state. § 100. If, when the cause of action shall accrue, against a per- Exception, son, he be out of the state, the action may be commenced within fendant is the term herein limited, after his return to the state; and if after out of the the cause of action shall have accrued, he depart from the state, the time of his absence shall not be part of the time limited for the commencement of the action. under disa § 101. If a person entitled to bring an action mentioned in the Exception as last preceding chapter, except for a penalty or forfeiture, or to persons against a sheriff or other officer for an escape, be at the time the bilities. cause of action accrued, either: 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than his natural life; or 4. A married woman: The time of such disability shall not be a part of the time limited for the commencement of the action. where per limitation § 102. If a person entitled to bring an action die before the Provision expiration of the time limited for the commencement thereof, and son entitled the cause of action survive, an action may be commenced by his dies before representatives, after the expiration of that time, and within one expires. year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executors or administrator after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration. § 103. When a person shall be an alien, subject or citizen of a In actions by aliens, country at war with the United States, the time of the continuance time of war of the war shall not be part of the period limited for the com- to be deduct mencement of the action. ed. Provision been revers § 104. If an action shall be commenced within the time pre-where judg scribed therefor, and a judgment therein for the plaintiff be re- ment has versed, on appeal, the plaintiff, or if he die and the cause of action ed. survive, his heirs or representatives may commence a new action within one year after the reversal. by injunction Time of stay 8 105. When the commencement of an action shall be stayed or statutory by injunction, or statutory prohibition, the time of the continuance to be deduct of the injunction, or prohibition, shall not be part of the time limited for the commencement of the action. prohibition ed. Disability must exist § 106. No person shall avail himself of a disability, unless it when right existed when his right of action accrued. of action ac Where seve tion accrued. § 107. When two or more disabilities shall co-exist, at the time ral disabili the right of action accrues, the limitation shall not attach until ties, all must they all be removed. be removed, This title not 108. This title shall not effect actions to enforce the payment applicable to of bills, notes or other evidences of debt issued by monied corpobills, &c., of corporations, rations, or issued or put in circulation as money. or to bank notes. of monied § 109. This title shall not affect actions against directors or Nor to act stockholders of a monied corporation, or banking associations, to ions against directors &c, recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within six or banking years after the discovery, by the aggrieved party, of the facts upLimitation in on which the penalty or forfeiture attached, or the liability was such cases created. corporations associations. prescribed. Acknowledg § 110. No acknowledgment or promise shall be sufficient eviment or new dence of a new or continuing contract, whereby to take the case promise must be made in out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby ; but this section shall not alter the effect of any payment of principal or interest. writing. TITLE III. Of the parties to civil actions. SECTION. 111. Action to be in the name of the real party in interest. interested. 114. When married woman is party, her husband to be joined, ex Guardian how appointed. 117. Who may be joined as plaintiffs. 118. Who may be joined as defendants. 119. Parties united in interest, when to be joined. When one or more may sue or defend for the whole. 120. Plaintiff may sue in one action the different parties to commercial paper. 121. Action when not to abate by death, marriage, or other disability, &c. Proceedings in such case. 122. Court when to decide controversy, or to order other parties to be brought in. in the name Action to be § 111. Every action must be prosecuted in the name of the real of real party party in interest, except as otherwise provided in section one in interest. hundred and thirteen. Assignment action not to of a thing in § 112. In the case of an assignment of a thing in action, the prejudice a action by the assignee shall be without prejudice to any set off or defence. other defence existing at the time of or before notice of the assign ment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due. Executor,&c and trustee § 113. An executor or administrator, a trustee of an express may sue trust, or a person expressly authorized by statute, may sue with- without perout joining with him the person for whose benefit the suit is pro- cially intersecuted. sons benefi ested. § 114. When a married woman is a party, her husband must be when marjoined with her, except that, ried woman is a party, 1. When the action concerns her separate property, she may husband sue alone: 2. When the action is between herself and her husband, she' may sue or be sued alone. when to be joined. §115. When an infant is a party, he must appear by guardian Infant to apwho may be appointed by the court in which the action is cuted, or by a judge thereof, or a county judge. prose pear by guardian. § 116. The guardian shall be appointed as follows: Guardian ed. • I. When the infant is plaintiff, upon the petition of the infant, how appoint if he be of the age of fourteen years, or if under that age, upon the petition of some other party to the suit, or of a relative or friend of the infant : 2. When the infant is defendant, upon the petition of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the petition of any other party to the action, or of a relative or friend of the infant. Who may be § 117. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plain- joined as tiffs, except as otherwise provided in this title. plaintiffs. joined as de § 118. Any person may be made a defendant who has or claims Who may be an interest in the controversy, adverse to the plaintiff, or who is a fendants. necessary party to a complete determination or settlement of the questions involved therein. ed in interest When one § 119. Of the parties to the action, those who are united in in- Parties unitterest must be joined as plaintiffs or defendants; but if the con- when to be sent of any one who should have been joined as plaintiff, cannot joined. be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the sue or departies are very numerous and it may be impracticable to bring whole. them all before the court, one or more may sue or defend for the benefit of the whole. or more may fend for the sue in one to commercial paper. § 120. Persons severally liable upon the same obligation or in- Plaintiff may strument, including the parties to bills of exchange and promisso- action differry notes may, all or any of lhem, but included in the same action, ent parties at the option of the plaintiff. § 121. No action shall abate by the death, marriage or other Action when disability of a party, or by the transfer of any interest therein, if not to abate by death, the cause of action survive or continue. In case of death, mar- marriage or other disariage or other disability of a party, the court, on motion, at any bility. in such case' Proceedings time within one year thereafter, or afterwards on a supplemental complaint may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in she name of the original party; or the court may allow the person, to whom the transfer is made to be substituted in the action. Court when to decide controversy, § 122. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights or to order of others, or by saving their rights; but when a complete deterto be brought mination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. other parties in. TITLE IV. Of the place of trial of Civil Actions. SECTION 123. Certain actions to be tried where the subject or some part thereof is situated. 124. 125. 126. Other actions, where the cause or some part thereof arose. tions to be Certain ac- § 123. Actions for the following causes must be tried in the tried where County in which the subject of the action or some part thereof is the object or situated, subject to the power of the court to change the place of trial, in the cases provided by statute. some part thereof is situated. Other ac the cause or 1. For the recovery of real property or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property: 2. For the partition of real property: 3. For the foreclosure of a mortgage of real property: 4. For the recovery of personal property, distrained for any cause. § 124, Actions for the following causes must be tried in the tions where county where the cause or some part thereof arose, subject to the like power of the court, to change the place of trial in the cases provided by statute: some part thereof arose. Other actions, ac cording to re sidence of the parties. 1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence committed on a lake, river or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed: 2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who by his command or in his aid, shall do anything touching the duties of such officer. § 125. In all other cases, the action shall be tried in the county in which the parties or any of them shall reside at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute. Action may unless de $126. If the county designated for that purpose in the com- tried in plaint, be not the proper county, the action may, notwithstanding, any county, be tried therein, unless the defendant shall, before the time for fendant deanswering expire demand in writing that the trial be had in the mand trial in proper county. TITLE V. Of the manner of commencing Civil Actions. SECTION 127. Actions how commenced. 128. Summons, requisites of. 129. Notice to be inserted in certain actions. 130. Complaint need not be served with summons. In such case what to be stated in summons and procecdings thereon. 131. Defendant unreasonably defending, when to pay costs. Summons, by whom served. 134. Summons, how served and returned. 135. Publication when defendant cannot be found. 136. Proceedings when there are several defendants, and part only served. 137. When service deemed made in case of publication. 138. Service of summons how proved. 139. When jurisdiction of action acquired. proper county. § 127. Civil actions in the courts of record of this state, shall Actions how be commenced by the service of a summons. commenced requisites of. § 128. The summons shall be subscribed by the plaintiff or his Summons attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service. Notice to be inserted in § 129. The plaintiff shall also insert in the summons a notice, intain ac in substance as follows: 1. In an action, arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint in twenty days after the service of the summons. 2. In other actions, that if the defendant shall fail to answer the complaint within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint. tions. need not be summons. § 130. A copy of the complaint need not be served with the Complaint summons. In such case, the summons shall state where the served with complaint will be filed; and if the defendant, within ten days in much case thereafter, in person or by attorney, demand, in writing, a copy of what to be the complaint, specifying a place within the state where it may be stated on served, a copy thereof shall be served accordingly, and after such proceedings summons, & thereon. |