Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

The order shall direct the publication to be made in one What the ornewspaper, to be designated as most likely to give notice der shall conto 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.

tain.

mons and com

In case of publication, the court or judge shall also di- Personal serrect a copy of the summons and complaint to be forth- vice of sumwith deposited in the post office, directed to the person to plaint equiva be served, at his place of residence, unless it appears that lent to publisuch residence is neither known to the party making the application, nor can with reasonable diligence be ascer tained by him.

cation.

allowed to

When the publication is ordered, personal service of a When defendcopy of the summons and complaint out of the state shall aut may be be equivalent to publication and deposit in the post office. defeud. 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 defend. ant or his representatives may, in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within three 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 the court may require bonds to be given for sueh res titution before execution is issued, as is now required by law, but the title to property sold under such judgment, complaint to to apurchaser in good faith, shall not thereby be affected; be first filed. 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.

Bonds for res

titution in all® such cases

SEC. 41. When the action is against two or more de- Proceedings fendants, and the summons is served on one or more but where there are several denot on all of them, the plaintiff may proceed as follows: fendants, and 1. If the action be against several persons jointly in part only are debted upon a contract, he may proceed against the served. defendant served, unless the court shall otherwise direct;

or,

2. In an action against defendants severally liable, he may proceed against the defendant or defendants served

When service complete in

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.

SEO. 42. In the cases mentioned in section forty, the service of the summons shall he deemed complete at the case of pub- expiration of the time prescribed by the order for publi

lication.

Service of summons

how proved.

When jurisdiction of action acquired.

Forms of

pleading here

cation.

SEO. 43. Proof of the service of the summons and of the complaint, or notice, if any, accompanying the same, shall be as follows:

1. If served by the sheriff, his certificate thereof; or, 2. If by any other person, his affidavit 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, as required by law, if the same shall have been deposited; or,

4. The written admission of the defendant. In case of service otherwise than by publication the certificate or affidavit shall state the time and manner of service.

SEC. 44. From the time of the service of the summons in a civil action or the allowance of a provisional remedy the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearace of a defendant is equivalent to a personal service of the summons upon him.

SEC. 45. All the forms of pleading heretofore existing, tofore existing, are abolished, and hereafter the forms of pleading in civil actions, in courts of record, and the rules by which the sufficiency of the pleadings are determined are those prescribed by this act.

abolished.

First pleading

to be com

plaint.

Complaint,

what to con

tain.

SEC. 46. The first pleading on the part of the plaintiff is the complaint.

SEO. 47. The complaint shall contain,

1. The title of the cause, specifying the name of the court in 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 plain and concise statement of the facts constituting a cause of action without unnecessary repetition.

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.

SEC. 48. The only pleading on the part of the defendant Defendant to is either a demurrer or an answer. It must be served demur or anwithin twenty days after the service of the copy of the "wer. complaint.

SEO. 49. The defendant may demur to the complaint, When the dewhen it shall appear upon the face thereof; either,

fendant may

demur, and

1. That the court has no jurisdiction of the person, of causes of dethe defendant or the subject of the action; or,

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,

4. That there is a defect of parties, plaintiff or defendant; or,

5. That several causes of action have been improperly united; or,

6. That the complaint does not state facts sufficient to constitute a cause of action.

mur.

SEO. 50. The demurrer shall distinctly specify the grounds Demurrer of objection to the complaint. Unless it do so, it may be must specify disregarded. It may be taken to the whole complaint, objection to grounds of or to any of the alleged causes of action stated therein. complaint. SEC. 51. If the complaint be amended, a copy thereof How to promust be served on the defendant, who must answer it ceed if comwithin twenty days, or the plaintiff upon filing with the plaint be clerk, due proof of the service, and of the defendant's omission, may proceed to obtain judgment as provided by section one hundred and fifty eight, but where an application to the court for judgment is necessary, eight days notice thereof must be given to the defendant.

[ocr errors]

amended.

SEO. 52. When any of the matters enumerated in section Objection not forty-nine do not appear upon the face of the complaint, apppearing on complaint, the objection may be taken by answer.

may be taken SEO. 53. If no such objection be taken either by de. by answer. murrer or answer, the defendant shall be deemed to have Objection, waived the same, excepting only the objection to the ju- when deemed risdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.

SEO. 54. The answer of the defendant must contain1. A general or specific denial of each material allegation of the complaint, controverted by the defendant, or of

waived.

Answer, what to contain.

What consti

tutes a counter claim.

May set forth

as many grounds of defence as exist, but must be sep.

any knowldge or information thereof sufficient to form a belief.

2. A statement of any new matter constituting a de fence or counter-claim, in ordinary and concise language, without repetition.

SEC 55. The counter claim mentioned in the last section, must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

1. A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim or connected with the subject of the action.

2. In an action arising on contract, any other cause of action arising also on contract and existing at the com mencement of the action.

SEC. 56. The defendant may set forth by answer as many defences and counter claims as he may have, whe ther they be such as have been heretofore denominated legal or equitable, or both; they must each be separately arately stated. stated, and refer to the causes of action which they are intended to answer in such manner that they may be in telligibly distinguished.

Demurrer as to SEC. 57. The defendant may demur to one or more of some cases of several causes of action stated in the complaint and an swer as to oth- Swer the residue.

action ano an

ers.

SEC. 58. Sham and irrelevant answers and defences Sham defences may be stricken out on motion, and upon such terms as to be stricken the court may, in their discretion, impose.

out on motion.

tain.

SEO. 59. When the answer contains new matter, corReply when necessary, and stituting a counter claim, the plaintiff may, within twenty what to cou- days, reply to such new matter, denying, generally or specially, each allegation controverted by him, or any knowledge or information thereof, sufficient to form a be lief, and he may allege, in ordinary and concise language, any new matter not inconsistent with the complaint constituting a defence to such new matter in the answer, In what cases and the plaintiff may, in all cases, demur to the answer, plaintiff may demur to an- for insufficiency, stating, in his demurrer, the grounds thereof, and the plaintiff may demur to one or more of several defences or counter-claims, set up in the answer, and reply to the residue of the counterclaim.

swer.

When defend

SEC. 60. If the answer contain a statement of new mat ant may move ter constituting a counter claim, and the plaintiff fail to for judgment reply or demur thereto within the time prescribed by law,

aron an answer.

[ocr errors][ocr errors]

3 defendant may move, on a notice of not less than ten ys, for such judgment as he is entitled to upon such tement, and if the case require it, a writ of inquiry of mages may be issued.

SEC. 61. If a reply of the plaintiff to any defence set Demurrer to by the answer of the defendant be insufficient, the reply. fendant may demur thereto, and shall state the grounds

ereof.

subscribed and

any when verified.

SEC. 62. Every pleading in a court of record must be Pleadings,how bscribed by the party, or his attorney, and when reading is verified, every subsequent pleading, except a murrer, must be verified also.

SEC. 63. The verification must be to the effect, that the Verification of me is true to the knowledge of the person making it, pleadings, cept as to those matters stated on information and bef, and as to those matters he believes it to be true, and ust be by the affidavit of the party, or if there be seveparties united in interest and pleading together, by e at least of such parties acquainted with the facts, if ch party be within the county where the attorney redes, and capable of making the affidavit. The affidavit ay also be inade by the agent or attorney, if the action. r defence be founded upon a written instrument for the ayment of money only, and such instrument be in the ossession of the agent or attorney; or if all the material legations of the pleadings be within the personal knowdge of the agent or attorney. When the pleading is erified by any other person than the party, he shall set rth in the affidavit his knowledge, or the grounds of his elief on the subject, and the reasons why it is not made y the party. When a corporation is a party, the verifiation may be made by any officer thereof. And when e state, or any officer thereof in its behalf is a party, e verification may be made by any person acquainted ith the facts. The verification may be omitted when an dmission of the truth of the allegations might subject e party to prosecution for felony. And no pleading can e used in a criminal prosecution against the party as roof of a fact admitted or alleged in such pleading.

SEC. 64. It shall not be necessary for a party to set forth How to state a pleading the items of an account therein alleged, but an account in e shall deliver to the adverse party, within ten days pleading. fter a demand thereof, in writing, a copy of the account, hich, if the pleading is verified, must be verified by his wn oath, or that of his agent or attorney, if within the

« ΠροηγούμενηΣυνέχεια »