Guardian or

friend liable for costs.

The defence of an infant.

Guardian for suit, how appointed.

All persons interested may join in suit as plaintiffs.

Any person interested may be made defendant.

Parties united in interest must be joined.

When parties are numerous,

defend for all.

SECT. 28. The guardian or the next friend is liable for the costs of the action brought by him, and, when he is insolvent, the court may require security for costs. Either may be a witness in an action brought by him.

SECT. 29. The defence of an infant must be by a guardian for the suit, who may be appointed by the court, in which the action is prosecuted, or by a judge thereof, or by a probate or county judge. The appointment cannot be made until after service of the summons in the action, as directed by this code.

SECT. 30. The appointment may be made upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the return of the sumIf he be under the age of fourteen, or neglect to so apply, the appointment may be made upon the application of any friend of the infant, or on that of the plaintiff in the action.

mons.

SECT. 31. All persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.

SECT. 32. Any person may be made a defendant, who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.

SECT. 33. Of the parties to the action, those who are united in interest must be joined, as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition.

SECT. 34. When the question is one of a common or genone may sue or eral interest of many persons; or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

Persons sever

ally liable in

cluded in same action.

Action does not abate by death,

marriage, &c.

SECT. 35. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.

SECT. 36. An action does not abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, during its pendency, if the cause of action sur

vive or continue. In the case of the marriage of female party, the fact being suggested on the record, the husband may be made a party with his wife; and in the case of the death or other disability of a party, the court may allow the action to continue by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party; or the court may allow the person to whom the transfer is made, to be substituted in the action.

SECT. 37. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.

Court may determine, when.

When persons interested made

SECT. 38. When, in an action for the recovery of real or personal property, any person having an interest in the prop- parties. erty, applies to be made a party, the court may order it to be done.

SECT. 39. Upon the affidavit of a defendant before answer in an action upon contract, or for the recovery of personal property, that some third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the same, as the court may direct, the court may make an order for the safe keeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his claim against the defendant. If such third party, being served with a copy of the order, by the sheriff or such other person as the court may direct, fail to appear, the court may declare him barred of all claim in respect to the subject of the action, against the defendant therein. If such third party appear, be shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of court for the paymen, deposit, or delivery thereof.

SECT. 40. The provisions of the last section shall be applicable to an action brought against a sheriff, or other officer,

When court may make order

for

delivery, &c., third person.

of subject of action, upon claim

Provisions of erwise applicable.

last section oth

for the recovery of personal property taken by him under execution, or for the proceeds of such property so taken and sold by him; and the defendant in such action shall be entitled to the benefit of those provisions against the party, in whose favor execution issued, upon exhibiting to the court the process under which he acted, with his affidavit that the property, for the recovery of which, or its proceeds, the action is brought, was taken under such process.

SECT. 41. In an action against a sheriff, or other officer, for the recovery of property taken under an execution, and replevied by the plaintiff in such action, the court may, upon application of the defendant and the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the costs being given.

Actions brought, in what county.

Same.

Same.

TITLE IV.

THE COUNTY IN WHICH ACTIONS ARE TO BE BROUGHT.

SECT. 42. Actions for the following causes, must be brought in the county in which the subject of the action is situated, except as provided in section forty-four: 1. For the recovery of real property, or of an estate or interest therein. 2. For the partition of real property. 3. For the sale of real property under a mortgage, lien, or other incumbrance or charge.

SECT. 43. If the real property, the subject of the action, be an entire tract and situated in two or more counties, or if it consists of separate tracts situated in two or more counties, the action may be brought in any county in which any tract, or part thereof, is situated, unless it be an action to recover the possession thereof. And if the property be an entire tract, situated in two or more counties, an action, to recover the possession thereof, may be brought in either of such counties; but if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions brought in the counties where they are situated. An action to compel the specific performance of a contract of sale of real estate, may be brought in the county where the defendants, or any of them, reside.

SECT. 44. Actions for the following causes must be brought in the county where the cause, or some part thereof, arose :

1. An action for the recovery of a fine, forfeiture, or penalty, imposed by a statute; except that, when it is imposed for an offence committed on a river, or other stream of water, or road, which is the boundary of two or more counties, the action may be brought in any county bordering on such river, watercourse, or road, and opposite to the place where the offence was committed. 2. An action against a public officer, for an act done by him in virtue, or under color of, his office, or for a neglect of official duty. 3. An act on the official bond or undertaking of a public officer.

SECT. 45. An action other than one of those mentioned in the first three sections of this chapter, against a corporation created by the laws of this territory, may be brought in the county in which it is situated, or has its principal office or place of business; but if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose.

SECT. 46. An action against a railroad company, or an owner of a line of mail stages, or other coaches, for an injury to person or property upon the road or line, or upon a liability as a carrier, may be brought in any county, through or into which the road or line passes.

Same.

Same.

SECT. 47. An action other than one of those mentioned in Same. the first three sections of this chapter, against a turnpike-road company, may be brought in any county in which any part of the road lies.

SECT. 48. The provisions of this chapter shall not apply in Same. the case of any corporation created by a law of this territory, whose charter prescribes a place, where alone suit against such corporation may be brought.

SECT. 49. An action other than one of those mentioned in Same. the first three sections of this chapter, against a non-resident of this territory or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose.

SECT. 50. Every other action must be brought in the Same. county in which the defendant or some one of the defendants resides, or may be summoned.

When and how

case may be re

county.

SECT. 51. In all cases in which it shall be made to appear moved to another by affidavit, to the satisfaction of the court, that a fair and impartial trial cannot be had in the county where the suit is pending, the court may change the place of trial to some adjoining county, wherein such impartial trial can be had; but if the objection shall be against all the counties of the district, then to the nearest county in the adjoining district.

TITLE V.

COMMENCEMENT OF A CIVIL ACTION.

CHAPTER I. Manner of commencing Civil Actions.-II. Services of
Summons.

How com

menced.

Plaintiff file a

precipe.

The summons.

Summons to anyother county, when.

SECT. 52. A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.

SECT. 53. The plaintiff shall also file, with the clerk of the court, a precipe, stating the names of the parties to the action, and demanding that a summons issue thereon.

SECT. 54. The summons shall be issued by the clerk, shall be under the seal of the court from which the same shall issue, and shall be signed by the clerk. Its style shall be, "The Territory of Dakota, county," and it shall be dated the day it is issued. It shall be directed to the sheriff of the county, and command him to notify the defendant or defendants named therein, that he or they have been sued and must answer the petition filed by the plaintiff, giving his name, at the time stated therein, or the petition will be taken as true, and judgment rendered accordingly. And where the action is for the recovery of money only, there shall be indorsed on the writ the amount to be furnished in the precipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs.

SECT. 55. Where the action is rightly brought in any county, according to the provisions of title four, a summons