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A. D. 1870. mand, in writing, that the trial 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.

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 parties, in writing, duly filed, or order of the Court; and the papers shall be filed or transferred accordingly.

Action, how commenced.

Summons

TITLE V.

MANNER OF COMMENCING CIVIL ACTIONS.

SEC. 150. Actions, how commenced.

151. Summons, requisites of.

152. Notice to be inserted in summons.

153. Complaint need not be served with summons.

154. Defendant unreasonably defending.

155. Notice of lis pendens.

156. Service of summons.

157. Return of summons.

158. Publication of summons.

159. Proceedings when part only of defendants served-partners. 160. When service by publication complete.

161. Proof of service.

162. When jurisdiction of action acquired.

SEC. 150. Civil actions in the Courts of Record of this State shall be commenced by service of a summons.

SEC. 151. The summons shall be subscribed by the plaintiff or his atrequisites of. torney, and directed to the defendant, and shall require 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.

Summons

SEC. 152. The plaintiff shall also insert in the summons a notice, in notice to be substance as follows:

inserted in.

1. In an action arising on contract, for the recovery of 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 sum

mons.

2. In other actions, that if the defendant shall fail to answer the complaint within twenty days after the service of the summons, the plaintiff will apply to the Court for the relief demanded in the complaint.

A. D. 1870.

Service of

SEC. 153. 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 complaint. 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.

no

Notice of personal

SEC. 154. In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant, with the summons, claim? 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.

SEC. 155. In an action affecting the title to real property, the plaintiff, Notice of lis at the time of filing the complaint, or at any time afterwards, or when- pendens. ever 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, or a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief, at the time of filing his answer, or at any time afterwards, 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 filing such notice: Provided, however, That such notice shall be of no avail, unless it shall be followed by the first publication of the summons, or 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 was commenced may, in its discretion, at any time after the action shall be settled, discontinued or abated, as is provided in Section number one hundred and fortyfour, on application of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the Court, order the notice authorized by this Section to be cancelled of record by the Clerk of any County in whose office the same may have been filed or recorded; and such cancellation shall be made by an indorsement to that

A. D. 1870.

Summonsby whom served.

Service

summons.

publication.

of

effect on the margin of the record, which shall refer to the order, and for which the Clerk shall be entitled to a fee of twenty-five cents.

SEC. 156. The summons may be served by the Sheriff of the County where the defendant may be found, or by any other 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 endorsement on the summons, fix a time for the service thereof, and the service shall then be made accordingly.

SEC. 157. The summons shall be served by delivering a copy 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, cashier, 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 or guardian has been appointed, to such committee or guardian and to the defendant personally. 4. In all other cases, to the defendant personally.

SEC. 158. Where the person on whom the service of the summons is to Service by be made cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the Court or a Judge thereof, or of the Probate Judge of the County where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this State, such Court or Judge may grant an order that the service be made by the publication of a summons in either of the following cases:

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

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

3. Where he is not a resident of this State, but has property therein, and the Court has jurisdiction of the subject of the action;

4. Where the subject of the action is real or personal property in this State, and the Defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists, wholly or partly, in excluding the Defendant from any interest or lien therein;

5. Where the action is for divorce, in the cases prescribed by law. The order must direct the publication to be made in two newspapers, to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the Court or Judge

must also direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint, out of the State, is equivalent to publication and deposit in the post office.

The Defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown at any time before judg ment, must be allowed to defend the action; and, except in an action for divorce, the Defendant against whom publication is ordered, 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 seven years after its rendition, on such terms as may be just; and if the defence be successful, and the judgment or any part thereof have been collected, or otherwise enforced, such restitution may thereupon be compelled as the Court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. And in all cases where publication is made, the complaint must be first filed, and the summons, as published, must state the time and place of such filing.

In actions for the foreclosure of mortgages on real estate, already instituted, or hereafter to be instituted, if any party or parties having any interest in or lien upon such mortgaged premises are unknown to the Plaintiff, and the residence of such party or parties cannot, with reasonable diligence, be ascertained by him, and such fact shall be made to appear, by affidavit, to the Court, or to a Judge thereof, where the trial is to be had, such Court or Judge may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week successively, in a newspaper printed in the County where the premises are situated, which publication shall be equivalent to a personal service on such unknown party or parties.

A. D. 1870.

Joint and se

SEC. 159. Where the action is against two or more Defendants, and the summons is served on one or more of them, but not on all of them, veral debtors the Plaintiff may proceed as follows:

1. If the action be against Defendants jointly indebted upon contract, he may proceed against the Defendant served, unless the Court otherwise direct; and if he recover judgment, it may be entered against all the Defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property of the Defendants served, and, if they are subject to arrest, against the persons of the Defendants served; or,

2. 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.

3. If all the Defendants have been served, judgment may be taken against any or either of them severally, where the Plaintiff would be entitled to judgment against such Defendant or Defendants, if the action had been against them or any of them alone.

4. If the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have passed against the Defendants named in the summons, and such omission shall not have

-partners.

A. D. 1870.

When service complete.

Proof of ser

vice.

been pleaded in such action, the Plaintiff, in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action; but the Plaintiff shall have satisfaction of only one judgment rendered for the same cause of action.

SEC. 160. In the cases mentioned in Section one hundred and fiftyeight, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication.

SEC. 161. Proof of the service of the summons, and of the complaint or notice, if any, accompanying the same, must 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, affidavit or admission must state the time and place of the service.

SEC. 162. From the time of the service of the summons in a civil acJurisdiction. tion, or the allowance of a provisional remedy, the Court is deemed to have acquired jurisdiction, and to have control of all the subsequent Appearance. proceedings. A voluntary appearance of a Defendant is equivalent to personal service of the summons upon him.

TITLE VI.

OF THE PLEADINGS IN CIVIL ACTIONS.

CHAPTER I. The complaint.

II. The demurrer.

III. The answer.
IV. The reply.

V. General rules of pleading.
VI. Mistakes and amendments.

Of forms of pleading.

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SEC. 163. All the forms of pleading heretofore 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 is to be determined, are those prescribed by this Act.

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