general circulation, named by the plaintiff or his attorney, printed in the English language, and published in the county (or if none be printed or published therein, then in the county in this State nearest thereto in which any such paper may be printed), in either of the following cases, shown by affidavit:

First. Where the defendant is a foreign corporation, and has property within the State, or the cause of action arose therein.

Second. Where the defendant, being a resident of the State of Indiana, has departed therefrom, with intent to defraud his creditors, or to avoid the service of the summons, or keeps himself concealed therein with like intent.

Third. Where the defendant is not a resident of the State, and the cause of action is founded upon or connected with a contract, or arises from a duty imposed by law, in relation to real estate in this State, or the object of the action is to enforce or discharge a lien, or to obtain a divorce, or to try and determine or quiet the title to, or possession of, real estate or any interest therein, or to enforce the collection of any demand by proceedings in garnishment or attachment, or where the object is to obtain a review of a judgment, or to procure a new trial, or to set aside a judgment, or to enforce satisfaction of a judgment or mortgage, or to set aside an entry of satisfaction of a judgment, mortgage or other lien, or to set aside a sale of real estate, or to set aside a return of the sheriff on an execution or other writ.

Fourth. Where the residence of any defendant, upon diligent inquiry, is unknown. Fifth. Where the name of any defendant is unknown, and he is believed to be a non-resident. (38.)

Sixth. When the defendant is not a resident of the State of Indiana, and the object of the action is to enforce the partition of real estate. [As amended by Act approved April 8, 1885. L. 1885, p. 155.

1. "Publication for three weeks" means twenty-one days, not merely three insertions.-Loughridge . City, 56 Ind. 253.

2. Á mistake, in the notice, of a middle letter in name of the party, or time of holding Court, does not avoid the proceedings.-Morgan v. Woods, 33 Ind. 23.

3. Publication may be made against a defendant in bastardy.-Davidson v. State, 62 Ind. 276.

[1883 S., p. 50. In force March 1, 1883.]

318a. Legal advertising. 1. In any county in this State containing a city with a voting population of 16,000 and over, as shown by the poll of the last general election, and having published therein three or more daily newspapers of general circulation therein, all advertising required by law growing out of the duty of any city, county or township officer, executor, administrator, guardian, trustee, assignee, or any unofficial person or persons, or a corporation, in a suit by such corporation, shall be done in some one of the daily newspapers of said city, of general circulation in said city and county.

3186. Designation of newspaper.

2. In all advertising contemplated by the provisions of the preceding section, the plaintiff or party ordering the advertising shall have the right to designate the paper in which said advertising shall be done, excepting as to the printing of the delinquent list.

318c. Repealing clause. 3. All laws, or parts of laws, in conflict with the provisions of this act are hereby repealed.

[1883 S., p. 77. In force March 3, 1883.]

318d. Repeals the last foregoing act. 1. An act entitled "An act concerning legal advertising in certain cases, and repealing all laws in conflict therewith, and declaring an emergency,” approved March 1, 1883, be and the same is hereby repealed. [1883 S., p. 134. In force March 6, 1883.]

318e. Revives former statutes. 1. All laws providing for and regulating all advertising required by law, or growing out of the duty of any city, county or township officer, executor, administrator, guardian, trustee, assignee or any unofficial person or persons or a corporation, in a suit by such corporation, and which may have been repealed by the said repealed act as above recited, are hereby revived, and the said repealing act, to which this act is supplemental, shall be so construed as that such laws were revived thereby, the same as if such revival had been expressly provided in said repealing act.

319. Personal service without the State - Proof. 61. When the defendant is a non-resident, personal service of the summons out of the State is equivalent to publication; and such service may be proved by the affidavit of a competent person, made before any officer authorized to administer oaths; which affidavit

shall state the time and place and mode of giving the notice, and set forth that the person thus served with notice is the identical person named in the action or proceeding, or the identity of the person may be proved by the affidavit of the plaintiff or any other person. (39.)

1. Personal service upon a party residing out of the State is equivalent to publication; but neither authorizes a personal judgment.-Allen v. Cox, 11 Ind. 383.

320. Proceedings, when part only are served. 62. Where the action is against two or more defendants, and the summons is served on one or more, but not all of them, the plaintiff may proceed as follows:

First. If the action be against defendants jointly indebted on contract, he may proceed against the defendant served; and if he recover judgment it may be enforced against the joint property of all and the separate property of the defendant served. Second. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants, and may afterward proceed against those not served.

Third. 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. (41.)

1. There can be but one judgment upon a joint obligation. This section does not change the common law rule in that respect.-Erwin 7. Scotten, 40 Ind. 389.

2. By statute, under section 321, the other defendants in a joint contract may be proceeded against after the judgment thereon against one; but this does not mean the taking of another judgment. That those against whom judgment was rendered have appealed therefrom, or that the defendants live in a different county from the one in which judgment was rendered, makes no difference.-Id.

3. When judgment has been rendered against one of several joint debtors, it is a bar to another action for the same matter, wherein the same debtor is defendant, either alone or with others.--Richardson v. Jones, 58 Ind. 240.

321. Proceedings against joint debtors not summoned, when. 723. In all cases where judgment has heretofore been, or shall hereafter be, recovered against one or more persons jointly liable on contract, but such judgment has been, or shall be, rendered only against part of the persons liable, for the reason that the others were not summoned and did not appear, the plaintiff may proceed against those not summoned and who did not appear, in the same manner as if they were alone liable, but the complaint must allege the facts aforesaid. (641.)

322. Return of "not found as to part. 63. When there is a return of "not found" as to any of the defendants, such return shall be suggested on the record, and the plaintiff may continue the cause, as to them, for another summons, at his option; and he may, in either case, proceed against the defendants served in time. (42.)

1. It is only necessary that "not found" be suggested on the record: the full return need not be entered. Erwin v. Scotten, 40 Ind. 389.

323. Plaintiff's privilege when part are served. 429. When the summons has been served in due time on part only of the defendants, the plaintiff may dismiss, or continue for further proceedings, his action as to those not summoned, or not summoned in time, and proceed to trial as to the others, or continue as to all of them, at his option. (362.)

324. Lis Pendens Record. 72. There shall be kept in the office of

the Clerk of the several Circuit Courts of this State a book to be called the "Lis Pen. dens Record," which shall be a public record.

325. Notice by party-Contents - Filing. 73. Whenever any person shall have commenced a suit, whether by complaint as plaintiff, or by crosscomplaint as defendant, to enforce any lien upon, right to, or interest in, any real estate, upon any claim not founded upon an instrument executed by the party having the legal title to such real estate, as appears from the proper records of such county, and recorded as by law required; or not founded upon a judgment of record in the county wherein such real estate is situated, against the party having the legal title to such real estate, as appears from such proper records, it shall be the duty of such person to file with the Clerk of the Circuit Court in each county where the real estate sought to be affected is situated, a written notice containing the title of the Court, the names of all the parties to such suit, a description of the real estate to be affected, and the nature of the lien, right, or interest sought to be enforced against the same; which notice shall, upon the payment of the proper fees, be immediately recorded in said "Lis Pendens Record" by the Clerk, who shall note upon the record the day and hour when said notice was filed and recorded.

326. Attachment or levy-Notice and filing by Sherifi. 74Whenever any Sheriff or Coroner of any county in this State shall seize upon any real estate or interest therein, by virtue of any writ of attachment; or shall levy upon any such real estate or interest therein, by virtue of any execution issued to him from any Court other than the Court of the county in which he is Sheriff or Coroner,- he shall, at the time of making the seizure or levy, file with the Clerk of the Circuit Court of his county a written notice, setting forth the names of the parties to the proceedings upon which the writ of attachment or execution is founded, and a description of the land seized or levied upon; which notice shall be recorded, as provided for in the preceding section of this Act; and such Sheriff or Coroner shall state, in his return to the attachment or execution, that such notice has been filed; and for making and filing which notice he shall be allowed a fee of fifty cents, to be taxed as costs: Provided, That such Sheriff or Coroner shall not be required to file such notice until the attachment or execution-plaintiff shall have furnished the money to pay the Clerk for filing and recording the same.

327. Index of Clerk. 75. It shall be the duty of the several Clerks, upon filing and recording the notices herein provided, to index the same in the name of the several parties whose interest in such real estate is sought to be affected by such suits, attachments, or executions, the plaintiff versus the names of all the defendants, and each defendant whose real estate is sought to be affected at the suit of the plaintiff.

328. Fees of Clerk. 76. The Clerk shall receive twenty-five cents for filing, recording, and indexing each notice required by this Act, to be paid by the person filing the same; and the further sum of fifteen cents for entering satisfaction of the lien, right, or claimed interest, as hereinafter provided.

329. Satisfaction of lien - Costs. 77. Upon the final determination of any suit, brought for the purposes in section seventy-three [8325] specified, adversely to the party seeking to enforce a lien upon, right to, or interest in, such real estate, it shall be the duty of the Court rendering the judgment to order the proper Clerk to enter in said "Lis Pendens Record " a satisfaction of the lien, right, or interest sought to be enforced against said real estate; and upon such entry being made, said real estate shall be forever discharged therefrom, and the costs for entering such satisfaction shall be taxed as part of the costs in the case.

330. Dismissal of attachment, etc.-Certificate - Fee. 78. Whenever any such attachment shall be dismissed; or the judgment rendered thereon shall be satisfied, or such execution shall be satisfied without a sale of such lands so seized or levied upon as aforesaid, or upon a redemption of such real estate within the time allowed by law after a sale thereof upon execution, it shall be the duty of the Clerk of the proper Court, from which such attachment or execution was issued, upon the payment of a fee of fifty cents by the owner of such real estate, to make a certificate of such dismissal or satisfaction, to be entered upon the "Lis Pendens Record," if the same is in his office, or to be recorded in the "Lis Pendens Record" of the proper county where such real estate is situated; and upon such certificate being entered or recorded, such real estate shall be discharged from the lien of such attachment or execution. 331. Failure to file notice-Effect. 79. Until the proper notices

required by this Act have been filed with the proper Clerk, the bringing of suits for the purposes mentioned in seetion seventy-three [§ 325], and the seizure of real estate under attachments, and the levy thereon under execution, in the cases mentioned in section seventy-four [§ 326], shall not operate as constructive notice of the pendency of such suits, or of the seizure of or levy upon such real estate, nor have any force or effect as against bona fide purchasers or incumbrancers of the same.

332. Judgment liens not affected. 80. Nothing in this Act shall be construed to impair the lien of judgments of the several Courts of record of this State upon the real estate of defendants in the county where such judgments are rendered, or transcripts thereof filed and recorded, as now required by law.

SEC.

ARTICLE 9-ACTIONS, WHEN DISMISSED.

333. Action dismissed, when.

SEC.
334.

Dismissal in vacation-Costs.

[1881 S., p. 240. In force September 19, 1881.]

333. Action dismissed, when. 433. An action may be dismissed without prejudice

First. By the plaintiff, before the jury retires; or, when the trial is by the Court, at any time before the finding of the Court is announced.

Second. By the Court, where the plaintiff fails to appear on the trial. Third. By the Court, on the refusal to make the necessary parties, after having been ordered by the court.

Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. Fifth. By the Court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

In all other cases, upon the trial the decision must be upon the merits. (363.)

1. It is too late to dismiss after the finding of the Court is announced.-Walker v. Heller, 56 Ind. 298; Randles v. Randles, 63 id. 93.

2. The plaintiff may dismiss the whole or any part of his cause before the jury retires. Dunning v. Galloway, 47 Ind. 182; Holland Johnson, 51 id. 346.

334. Dismissal in vacation-Costs. 434. The plaintiff may dismiss his action in vacation, by filing with the Clerk a writing to that effect. The Clerk shall enter such written dismissal in the order-book, and the Court shall enter judgment accordingly at the next term. The plaintiff shall not be liable to the defendant for any costs made by him after notice of the dismissal. (364.)

I. The simple dismissal of a suit is no bar to another for the same cause.-Crews v. Cleghorn, 13 Ind. 438.

2. Dismissal is equivalent to nonsuit.-Montgomery v. Jones, 5 Ind. 526.

3. After a cause is dismissed and judgment of dismissal entered, the cause is no longer pending for any purpose.-Breese v. Allen, 12 Ind. 426; Wiseman v. Linn, 39 id. 250.

4. The plaintiff may dismiss his suit in vacation, by written dismissal filed with the Clerk. St. John v. Hardwick, 17 Ind. 180.

5. In partition a dismissal of the petition carries with it the cross-petition.-Holz. ner v. Holzner, 48 Ind. 151.

362. When instrument or copy must be filed.
363. Bill of particulars-Abstract of title.
364. Proof of execution of instruments - Verified
plea- Exception.

392.

393. Failure of proof.

Amendment- Deiay thereby - Affidavit.
Contents of affidavit-Pleadings, when filed.
Names of parties-Pleadings corrected

Variance immaterial, unless party misled.
Variance immaterial — Action of Court.

lief from judgment

397.

Name of defendant.

398.

Exception.

399.

Judgment not reversed for technical errora.
Supplemental pleadings

365. Dilatory pleas verified-Answer and issue in abatement.

366. Failure of consideration

367, Pleading set-off or payment, though barred.

[1881 S., p. 240. In force September 19, 1881.]

335. Definition. 81 The pleadings are formal allegations by the parties of their respective claims and defenses, for the judgment of the Court. (46.)

336. Distinct forms abolished. 82. All the distinct forms of pleading heretofore existing, inconsistent with the provisions of this Act, are hereby abolished; and hereafter the forms of pleadings in civil actions in Courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are modified as prescribed by this Act. (47.) 337. What allowed. 83. The only pleadings allowed areFirst. The complaint by the plaintiff.

Second. The demurrer and answer by the defendant.
Third. The demurrer and reply by the plaintiff. (48.)

338. Complaint - Contents-Paragraphs numbered. .84. The first pleading on the part of the plaintiff is the complaint. The complaint shall contain

First. The title of the cause, specifying the name of the Court and county in which the action is brought, and the names of the parties to the action, plaintiff and defendant.

Second. A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.

Third. Where the complaint contains more than one cause of action, each shall be distinctly stated in a separate paragraph, and numbered.