service the defendant shall have twenty days to answer; but only one copy need be served on the same attorney. In the case of a defendant against whom no personal claim is made in an action for the partition of real property, or for the foreclosure of a mortgage, the plaintiff may deliver to such defendant, with the summons, a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, and that no personal claim is made against such defendant, in which case no copy of the complaint need be served on such defendant unless within the time for answering he Defendant shall in writing demand the same. unreasona bly defending when to pay costs. Notice of action affecting title to § 131. If a defendant, on whom such notice is served unreasonably defend the action, he shall pay costs to the plaintiff. § 132. In an action affecting the title to real property, the pendency of plaintiff, at the time of commencing the action, or at any time afterwards, may file with the clerk of each county in which the proreal property. perty is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the property in that county affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto and the time and place of recording the same. From the time of filing only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby. Summons, by whom served. Summons, how served and return. ed. § 133. The summons may be served by the sheriff of the county where the defendant may be found, or by any other person not a party to the action. The service shall be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons, may, at his option, by an endorsement on the summons, fix a time for the service thereof, and the service shall then be made accordingly. §134. The summons shall be served by delivering a copy thereof, as follows: 1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, or managing agent thereof; 2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian, or if there be none within the state, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed; 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee has been appointed, to such committee, and to the defendant personally; 4. In all other cases to the defendant personally. E when de found. § 135. Where the person on whom the service is to be made, Publication, cannot, after due diligence, be found within the state, and that fact fendant can shall appear by affidavit to the satisfaction of a court or a judge not be thereof, or a county judge, and it shall in like manner appear that a cause of action exists against the defendant, in respect to whom the service is to be made, or that he is a necessary or proper party to an action, relating to real property in this state, such court or judge may grant an order that the service be made, by the publication of a summons, in either of following cases: 1. Where the defendant is a foreign corporation; 2. Where the defendant being a resident of this state, has departed therefrom, with intent to defraud his creditors, or avoid the service of a summons, or keeps himself concealed therein, with the like intent, and the action arises out of contract, or the non-feasance or mis-feasance complained of, is a breach of contract; 3. Where he is a non-resident, but has property therein, and the action is on contract, and the court has jurisdiction of the subject of the action; 4. Where the subject of the action is real or personal property in this state, and the defendant has, or claims, a lien or interest, actual or contingent, therein, or the relief demanded consists, wholly or partly, in excluding the defendant from any interest therein; 5. Where the action is founded on a mortgage upon property in this state, and the defendant is personally chargeable with the debt for which the mortgage is a security; 6. Where the action is for divorce, in the cases prescribed by law. The order shall direct the publication to be made in two newspapers, to be designated, as most likely to give notice to the person to be served, and for such length of time, as shall be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge shall also direct a copy of the summons and complaint, to be forthwith deposited in the post office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint, out of the state, shall be equivalent to publication and deposit in the post office. If the summons shall not be personally served on a defendant, nor received by such defendant through the post office, in the cases provided for in this section, he or his representatives, shall on application and sufficient cause shown, at any time before judgment, be allowed to defend the action; and except in actions for divorce, the defendant or his representatives, may in like manner, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as shall be just, except in actions for divorce, and if the defence be successful, and the judgment, or any part thereof, shall have been collected or otherwise enforced, such restitution may thereupon be compelled as the court shall direct. And in all cases, where publication is made, the complaint shall be first filed, and the summons, as published, shall state the time and place of such filing. Proceedings § 136. Where the action is against two or more defendants, where there are several and the summons is served on one or more, but not on all of them, defendants, the plaintiff may proceed as follows: and part only served. When service deemed 1. If the action be against several persons jointly indebted upon a contract, he may proceed against the defendant served, in the same manner as at present, and with the like effect, unless the court shall otherwise direct; or, 2. In an action against defendants severally liable, he may proceed against the defendant or defendants served in the same manner as if such defendant or defendants were the only parties proceeded against; 3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone. When an order shall be made extending the time to answer beyond the time for which the application for the relief demanded in the complaint shall have been noticed, if the defendant fail to answer, the application for judgment may be made without further notice. § 137. In the cases mentioned in section one hundred thirtymade in case five, the service of the summons shall be deemed complete, at of publica- the expiration of the time prescribed by the order for publication. tion. Service of summons. § 138. Proof of the service of the summons, and of the complaint or notice, if any, accompanying the same, shall be as folhow proved. lows: 1. If served by the sheriff, his certificate thereof; or 3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post office, if the same shall have been deposited; or 4. The written admission of the defendant: In case of actual service, the certificate or affidavit shall state the time and place of the service. § 139. From the time of the service of the summons in a civil When jnrisdiction of ac-action, or the allowance of a provisional remedy, the court shall tion acquir- be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. SECTION 140. 141. CHAPTER I. The Complaint. Forms of pleadings inconsistent with this act abolished. 142. Complaint, what to contain. pleading, in § 140. All the forms of pleading heretofore existing, inconsis- Forms of tent with the provisions of this act, are abolished; and hereafter, consistent the forms of pleading in civil actions, in courts of record, and the with this act rules by which the sufficiency of the pleadings is to be determined, are modified as prescribed by this act. abolished. First plead § 141. The first pleading on the part of the plaintiff, is the ing to be complaint. § 142. The complaint shall contain: complaint. Complaint, what to con 1. The title of the cause, specifying the name of the court in tain. which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant; 2. A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; 3. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated. CHAPTER II. The demurrer. SECTION 143. Defendant to demur or answer. 144. When the defendant may demur. 145. Demurrer must specify grounds of objection to complaint. 146. How to proceed if complaint be amended. 147. Objection not appearing on complaint may be taken by answer. 148. Objection, when deemed waived, 143. The only pleading on the part of the defendant, is either Defendant to a demurrer or an answer. It must be served within twenty days demur or after the service of the copy of the complaint. § 144. The defendant may demur to the complaint, when it shall appear upon the face thereof, either: answer. When the defendant 1. That the court has no jurisdiction of the person of the defen- may demur. dant, or the subject of the action; or, Demurrer grounds of 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties, for the same cause; or, or, 4. That there is a defect of parties, plaintiff or defendant; or, 5. That several causes of action have been improperly united; 6. That the complaint does not state facts sufficient to constitute a cause of action. § 145. The demurrer shall distinctly specify the grounds of msst specify objection to the complaint. Unless it do so, it may be disregarobjection to ded. It may be taken to the whole complaint, or to any of the complaint. alleged causes of action stated therein. How to pro plaint be amended. 146. If the complaint be amended, a copy thereof must be ceed if com- served on the defendant, who must answer it within twenty days, or the plaintiff upon filing with the clerk on proof of the service, and of the defendant's omission, may proceed to obtain judgment, as provided by section two hundred and forty-six, but where an apObjection plication to the court for judgment is necessary, eight days notice not appear thereof must be given to the defendant. *ing on face of complaint may be a ken by an swer. Objection, when deem ed waived. Answer what to contain. May set forth as many grounds of § 147. When any of the matters enumerated in section one hundred and forty-four do not appear upon the face of the complaint, the objection may be taken by answer. § 148. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. 150. May set forth as many grounds of defence as exist. 151. 152. Demurrer as to some causes of action, and answer as to others. § 149. The answer of the defendant shall contain: 1. In repect to each allegation of the complaint controverted by the defendant, a general or specific denial thereof, or a denial thereof according to his information and belief, or of any knowledge thereof sufficient to form a belief; 2. A statement of any new matter constituting a defence, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. § 150. The defendant may set forth by answer, as many defences as he shall have. They shall each be separately stated, defence as and refer to the causes of action which they are intended to answer, in any manner by which they may be intelligibly distinguished. exist. |