Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

complaint his own affidavit, stating that any of the allegations thereof recited in the affidavit are true, and known to be so by the defendant, and that they cannot be proved or shown except by his answer, so far as the plaintiff knows or believes, such allegations, unless denied by the answer, shall be taken as true.

SEC. 44. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in a pleading.

SEC. 45. If an original pleading or paper be lost, or withheld by any person, the court may allow a copy thereof to be substituted.

MISTAKES IN PLEADING AND AMENDMENT.

SEC. 46. No variance between the allegation in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party to his prejudice, in maintaining his action or defence upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.

SEC. 47. When the variance is not material as provided in the last preceding section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.

SEC. 48. When, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof.

SEC. 49. Any pleading may be once amended by the party, of course, without costs and without prejudice to the proceedings already had, at any time before the period of answering it shall expire; in such case a copy of the amended pleading shall be served on the adverse party, and he shall have the same time to answer, reply, or demur thereto as to the original pleading. At any time within ten days after a demurrer is filed, the adverse party may amend, of course, on payment of costs since the defective pleading; and in such case a copy of the amended pleading shall be forthwith served on the adverse party, who shall have the same time thereafter to answer or reply thereto as to an original pleading.

SEC. 50. After the decision upon a demurrer, if it be overruled, and it appears that such demurrer was interposed in good faith, the court may, in its discretion, allow the party to plead over upon such terms as may be proper. If the demurrer be allowed for the cause mentioned in the fifth subdivision of section five of this chapter, the court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned.

SEC. 51. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or when the amendment does not change substantially the claim or defence by conforming the pleading or proceeding to the facts proved.

SEC. 52. The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this chapter, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party or his legal representatives from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supply an omission in any proceeding.

SEC. 53. Whenever the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name, and when his true name shall be discovered, the pleading or proceeding may be amended accordingly.

SEC. 54. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

SEC. 55. The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer, or reply, alleging facts material to the case, occurring after the former complaint, answer, or reply.

SEC. 56. When any party shall amend any pleading or proceeding,

and the court shall be satisfied, by affidavit or otherwise, that the adverse party could not be ready for trial in consequence thereof, a postponement may be granted to some day in term, or a continuance to another term of the court.

CHAPTER 83.

CLAIM AND DELIVERY OF PERSONAL PROPERTY.

SECTION

1.

2 When and how personal property may

3

be claimed.

1.

5. Proceedings by the marshal.

SECTION

6. Buildings and enclosures may be broken open after demand.

7. Attendance of defendant may be compelled for examination on oath as to situation of property.

SECTION 1. The plaintiff in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the immediate delivery of such property as provided in this chapter.

SEC. 2. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing:

1. That the plaintiff is the owner of the property claimed (particu. larly describing it) or is lawfully entitled to the possession thereof by virtue of a special property therein, the facts in respect to which shall be set forth.

2. That the property is wrongfully detained by the defendant.

3. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff, or, if so seized, that it is by statute exempt from such seizure; and

4. The actual value of the property.

SEC. 3. When such affidavit is filed with the clerk, he shall issue an order for the seizure of the property, and delivery thereof to the plaintiff upon his executing the undertaking specified in section five of this chapter.

SEC. 4. The order shall be directed and delivered to the marshal. It shall state the names of the parties to the action, and the court in which the action is brought, and direct the marshal to take the

property, describing it, and stating its value, as in the affidavit, and deliver it to the plaintiff upon his executing the undertaking specified in section five of this chapter.

SEC. 5. The marshal shall forthwith proceed to execute said order, but before taking possession of such property, he shall take from the plaintiff, or some person in his behalf, a written undertaking, payable to the defendant, with sufficient surety to be approved by the marshal, to the effect that the plaintiff will prosecute his action with effect and without delay, and that he will return the property to the defendant if return thereof be adjudged by the court, and that he will pay to the defendant all such sums of money as may be recovered against him by the defendant in the action for any cause whatever; which written undertaking shall be delivered to the marshal, and in default thereof the property shall remain with the defendant, but the action shall not be dismissed or delayed thereby. The return day of the order, when issued at commencement of the action, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it is issued.

SEC. 6. If the property, or any part thereof, be concealed in a building or enclosure, the marshal shall demand its delivery; if it shall not be delivered, he shall cause the building or enclosure to be broken open, and take the property in his possession; and if necessary he may call to his aid the power of the county. If the marshal cannot find the property, or any part thereof, the action shall not abate, but be prosecuted to final judgment.

SEC 7. When it appears by the affidavit of the plaintiff, or other person in his behalf, or by the return of the officer, that the property claimed has been disposed of or concealed, so that the order cannot be executed, the court may compel the attendance of the defendant, examine him on oath as to the situation of the property, and punish a wilful obstruction or hindrance of the execution of the order, and a disobedience of the orders of the court in this respect, as in cases of a contempt.

26

[blocks in formation]

SECTION 1. The writ of order or injunction requiring a person to refrain from a particular act may be granted by the circuit court, or by a judge thereof in vacation, and when made by a judge may be enforced as the order of the court.

SEC. 2. An injunction may be granted in the following cases:

1. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

2. When it shall appear by the complaint or affidavit that the commission or continuance of some act during the litigation would produce great or irreparable injury to the plaintiff.

3. When it shall appear during the litigation 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 respecting the subject of the action, and tending to render the judgment ineffectual.

4. In any case where it is specially authorized by statute.

SEC. 3. The injunction may be granted at the time of issuing the summons upon the complaint, and at any time afterwards, before judgment, upon affidavits. The complaint in the one case, and the affidavits in the other, shall show satisfactorily that sufficient grounds exist therefor. No injunction shall be granted on the complaint unless it be verified by the oath of the plaintiff, or some one in his behalf, that the person making the oath has read the complaint, or heard the complaint read, and knows the contents thereof, and the same is true of his own knowledge, except the matters therein stated on information and belief, and that as to those matters he believes it

« ΠροηγούμενηΣυνέχεια »