tion, order that the action be deemed abated, unless the same be continued by the proper parties, within a time to be fixed by the court, not less than six months, nor exceeding one year, from the granting of the order. As amended by Laws of 1862, ch. 460. 26 B., 575; 23 How. P. R., 300; 21 How. P. R., 352; 20 How. P. R., CHAP. XI. to decide versy, or to be brought $122. The court may determine any controversy between Court when the parties before it, when it can be done without prejudice controto the rights of others, or by saving their rights, but when a order other complete determination of the controversy cannot be had parties to without the presence of other parties, the court must cause in. them to be brought in. And when, in an action for the recovery of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court, to be made a party, it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract, or for specific, real or personal property, may at any time before answer, upon affidavit, that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt, or property, upon due notice to such person, and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property, or its value, to such person as the court may direct; and the court may, in its discretion, make the order. As amended by Laws of 1851, ch. 479. 262; 22 B., 18 N. Y., 485; 31 B., 657; 29 B., 26, 388; 24 B., 162; 23 B., TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. Sec. 123. Certain actions to be tried where the subject or some part thereof is situated. 124. Other actions, where the cause, or some part thereof, arose. 125. Other actions, according to the residence of the parties. 126. Action may be tried in any county unless defendant demand trial in proper county. $123. Actions for the following causes, must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, in the cases provided by statute. 1. For the recovery of real property or of an estate or inte Certain actried where some part tions to be subject or thereof is situated. PART III. Other ac Cause or rest 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. 9 N. Y., 267; 26 B., 198; 23 B., 411; 17 How. P. R., 522; 16 How. P. R., 41 12 How. P. R., 35; 9 How. P. R., 512; How. P. R., 274; 5 How. P. R., 141; 6 Ab., 166; 4 Ab., 44; 3 Ab., 22; 2 Ab., 13. $124. Actions for the following causes, must be tried in tions, where the county where the cause or some part thereof arose, subject to the like power of the court, to change the places of trial in the cases provided by statute: some part thereof arose. Other actions, ac cording to 1. For the recovery of a penalty or forfeiture imposed by statute; except that when it is imposed for an offense 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 offense 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. 9 N. Y., 267; 12 B., 58; 17 How. P. R., 522; 11 How. P. R., 240; 7 How. P. R., 249; 5 How. P. R., 141; 4 Ab., 44. $ 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 residence of commencement of the action; or if none of the parties shall the parties, 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 be tried in unless de any county, 17 How. P. R., 522, 545; 7 How. P. R., 462; 5 How. P. R., 141, 243; 4 How. P. R., 88, 185; 8 Ab., 148; 6 Ab., 329; 4 Ab., 55, 246, 373. $126. If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand, in writing, that the trial trial in pro- be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section. fendant demand per county. The court may change the place of trial in the following cases: 1. When the county designated for that purpose in the complaint is not the proper county: 2. When there is reason to believe that an impartial trial cannot be had therein: 3. When the convenience of witnesses and the ends of justice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the CHAP. XI. parties, in writing, duly filed, or order of the court, and the papers shall be filed or transferred accordingly. As amended by Laws of 1851, ch. 479. 26 B., 198; 17 B., 229; 6 B., 146; 20 How. P. R., 248; 17 How. P. R., TITLE V. OF THE MANNER OF COMMENCING CIVIL ACTIONS. SEC. 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 proceedings thereon. 131. Defendant unreasonably defending, when to pay costs. 132. Notice of pendency of action affecting title to real property. 133. 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. S 127. Civil actions in the courts of record of this state, Actions, shall be commenced by the service of a summons. 11 N. Y., 55; 18 B., 334; 10 B., 259; 8 B., 543; 14 How. P. R., 361; how commenced. 5 128. The summons shall be subscribed by the plaintiff, or Summons his attorney, and directed to the defendant, and shall require quisites 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. 10 N. Y., 317; 18 B., 334; 14 B., 541; 7 B., 84; 16 How. P. R., 371; 5 $ 129. The plaintiff shall also insert in the summons a notice, in substance as follows: Notice to be inserted in certain 1. In an action, arising on contract for the recovery of actions. 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. 11 N. Y., 352; 32 B., 63; 29 B., 385; 18 B., 334; 11 B., 305; 7 B., 84; PART IIL Complaint need not be served with summons. In such case what to be stated in Bummons, and proceedings thereon. Defendant unreasona ing, when to pay costs. S130. A copy of the complaint need not be served with the summons. In such case, the summons must state where the complaint is or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and in person, or by attorney, demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof must, within twenty days thereafter, be served accordingly, and after such service the defendant has twenty days to answer, but only one copy need be served on the same attorney. As amended by Laws of 1851, ch. 479. 19 N. Y., 413; 17 How. P. R., 137; 13 How. P. R., 129; 6 How. P. R., 298; 5 How. P. R., 263, 461; 8 Ab., 173, 418; 2 Ab., 15. $131. In the case of a defendant against whom no persobly defend nal claim is made, 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, if it affects specific, real, or personal property, 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 shall, in writing, demand the same. If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff. Notice of pendency of action affecting property. Actions, when deem ed pending. As amended by Laws of 1851, ch. 479. 10 N. Y., 317; 8 B., 124; 4 How. P. R., 15. S 132. In an action affecting the title to real property, the plaintiff at the time of filing the complaint, or at any time afterwards, or whenever a warrant of attachment, under chapter four, of title seven, part second, of this Code, shall be issued, or at any time afterwards, the plaintiff, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and the 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. And every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the action. For the purposes of this section an action shall be deemed to be pending from the time of the filing of such notice, pro vided, however, that such notice shall be of no avail, unless it shall be followed by the first publication of the summons on an order therefor, or by the personal service thereof on a defendant within sixty days after such filing. And the court in which the said action is pending may, in its discretion, at any time after the action shall have become abated, as is provided in section number one hundred and twenty-one, on good cause shown, and on application of any party aggrieved, after the action shall have become abated as is provided in section one hundred and twenty-one, direct the notice authorized by this section to be removed from record by the clerk of any county in whose office the same may have been filed. Amended by Laws of 1851, ch. 479; 1857, ch. 723; 1858, ch. 306; 1862, 7 How. P. R., 379; 8 Ab., 128; 6 Ab., 120. CHAP. XI. by whom $133. The summons may be served by the sheriff of the Summons, county where the defendant may be found, or by any other served. 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 indorsement on the summons, fix a time for the service thereof, and the service shall then be made accordingly. 5 How. P. R., 112; 3 How. P. R., 284, 314, 327; 10 Ab., 263; 4 Ab., Summons, $134. The summons shall be served, by delivering a copy owmoved thereof, as follows: 1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof; but such service can be made in respect to a foreign corporation, only when it has property within this state, or the cause of action arose therein; or where such service shall be made within this state personally upon the president, treasurer or secretary 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. Amended by Laws of 1851, ch. 479; 1859, ch. 428. 31 B., 308; 30 B., 161; 28 B., 512; 8 B., 543; 20 How. P. R., 68; 18 P. R., 194; 5 How. P. R., 96, 109, 183; 11 Ab., 452, 456; 10 Ab., and returned. |