built a permanent and valuable barn thereon, and made other valuable and permanent improvements thereon, after he received possession of said real property as such purchaser thereof;

III.

That the defendant has duly performed all the conditions of said contract on his part; and before this action defendant tendered to the plaintiff the sum of dollars, which was

the full amount of the unpaid balance of the purchase price for said premises and demanded a deed from 'plaintiff conveying said premises to defendant; but plaintiff refused, and ever since has refused, to receive the said money so tendered, and to make to defendant such or any 'deed for said premises;

IV.

That this defendant has ever since such tender to plaintiff been able and willing to pay to the plaintiff said sum of money so tendered; and defendant has paid the same into this court in this action, ready to be paid to plaintiff if he will accept the same and make to defendant such deed for said premises; V.

That defendant is able, ready and willing, and offers to pay to plaintiff such other or further sum of money as the court may adjudge to be just, under all the circumstances of the case.

WHEREFORE defendant demands judgment against plaintiff, that plaintiff receive said sum of money so tendered to the plaintiff; and such further sum of money, if any, which this court may adjudge to be just; and that plaintiff make to defendant a deed conveying to defendant 'said premises in fee; and for such other or further relief as the equity of the case may warrant; and for defendant's costs of suit.

I J,

Defendant's Attorney.

BUDD--35

PROCEEDINGS ON THE PART OF PLAINTIFF AFTER ANSWER OR CROSS COMPLAINT, AND BEFORE

PREPARATIONS FOR TRIAL.

Within ten days after the plaintiff has received an answer which contains a defense founded on a written instrument, a copy of which is contained in the answer, or is annexed thereto, he must make and file with the clerk, an affidavit denying the genuineness and due execution of said written instrument, and serve on the defendant's attorney a copy of said affidavit, or he will be deemed to admit such genuineness and due execution, unless he be refused an inspection of the original on a demand in writing therefor; such demand may be made and filed as indicated by form No. 144.

Should the plaintiff wish to move to strike out the answer, or any portion thereof, as sham, irrelevant, or immaterial, he can do so on giving notice of such motion in the manner as indicated in form No. 137.

The plaintiff may demur to the answer, or to one or more of the several defenses or counter claims set up in the answer within the same time after service of the answer, as the defendant is allowed to demur after service of the summons, on one or more of the grounds following, namely:

First. That several causes of counter claim have been improperly joined; Second. That the answer does not state facts sufficient to constitute a defense or counter claim;

Third. That the answer is ambiguous, unintelligible or uncertain.

Form No. 147, and what is stated in connection with the same, will indicate how such demurrer should be made.

In California, and in some of the other code states, the statement of new matter in the answer, in avoidance or constituting a defense or counter claim, is deemed controverted by the plaintiff; but in New York, and some other code states, such new matter must be controverted by a replication thereto filed by the plaintiff.

When a cross-complaint is filed, the allegations therein, after a demurrer (if any) thereto, has been overruled, must be controverted by the opposite parties by an answer thereto, or the material allegations of such cross-complaint will be taken to be true as against an opposite party who does not so controvert the same.

A defendant who files a cross-complaint is, as to such cross-complaint, the plaintiff, and the opposite parties to the cross-complaint are the defendants, and the cross-complaint is to be treated as an original complaint, and motions to strike out the same, or any portion thereof, or any portion of an answer thereto, and a demurrer thereto, or to any portion thereof, and a demurrer to an answer thereto, must be the same as they would be in case the cross-complaint was an original complaint in an action.

When it appears to the court by affidavit or otherwise that a complete determination of a controversy in an action cannot be had without the presence of other parties, the court must order them to be brought in, and to that end may order amended and supplemental pleadings, or a cross-complaint to be filed, and a summons on such cross-complaint to be issued and served on persons who are not parties to the original action.

The court may also, in an action for the recovery of real or personal property, on the application of a person who is not a party to the action, but has an interest in the subject of the action, order such person to be brought in by a proper amendment. Code of Civil Procedure, Sec. 389.

A court may, on a proper application therefor, on motion, allow the plaintiff or defendant to file a supplemental complaint or answer, alleging facts material to the case, and occurring after the former complaint or answer.

Such motion should be made on a verified petition, or on an affidavit, showing the occurrence of such material facts after such former complaint or answer was filed, and on notice to the opposite party.

FORM NO. 164.

APPLICATION FOR THE ENTRY OF THE DEFAULT OF A DEFENDANT WHO HAS BEEN PERSONALLY SERVED WITH THE SUMMONS IN AN ACTION FOR MONEY OR DAMAGES, AND HAS NOT APPEARED OR DEMURRED OR ANSWERED, AND FOR ENTRY OF JUDGMENT AGAINST HIM.

[Name of Court.]

C D, the [or a] defendant in this action, having been personally served with the summons in the action, and having failed to appear and answer or demur within the time specified in the summons [and having failed to appear and answer or demur within the further time granted], A B, the plaintiff in the action, applies to the clerk of said court to enter the default of the defendant, C D, for such failure to appear and answer or demur, and to enter judgment in favor of plaintiff and against the defendant C D, for the amount specified in the summons; and plaintiff's costs in the action. [Date.]

G H,

Attorney for Plaintiff.

To

Esq.,

Clerk of said Court.

If further time has not been given to answer, the words (and having failed to appear and answer within the further time granted) should be omitted.

FORM NO. 165.

ENTRY OF DEFAULT BY CLERK, ON SUCH APPLICATION.

[Name of Court.]

A summons having been issued in this action, and such summons having been returned and filed in the action, with written evidence thereon that C D, the [or a] defendant in the action had been served personally with said summons, and said defendant C D having failed to appear and file an answer or demurrer to the complaint in the action within the time specified in such summons [and having failed to file an answer or demurrer to the complaint in the action within the further time granted], and A B, the plaintiff in the action, having made

application to

the clerk of said court, to enter the default of C D, the [or a] defendant in the action, for such failure to appear and answer or demur to the complaint in the action, and to enter judgment in favor of the plaintiff and against the defendant C D, for the amount specified in the summons, and plaintiff's costs in the action, the default of the defendant for failure to appear and answer in the action is entered. [Date.]

Clerk.

By

Deputy Clerk.

FORM NO. 166.

MEMORANDUM ENDORSED ON THE COMPLAINT IN AN ACTION, OF THE DEFAULT OF DEFENDANT.

The default of the defendant C D in not answering the within complaint is entered.

The defendant C D, having been personally served with the summons issued in this action, and having failed to file an answer or a demurrer to the complaint in the action within the time. prescribed by law, [and within the time granted] and his default for so failing having on the application of the plaintiff in the action been entered, and G H, the attorney for the plaintiff in the action having applied for entry of judgment in the action in favor of the plaintiff and against C D, the [or a] defendant in the action for the amount specified in the summons in the

action including costs, judgment is therefore entered in the action that A B, the plaintiff in the action, have and recover from C D, the defendant in the action,

dollars, costs of suit.

Judgment entered the day of

dollars, and

FORM NO. 168.

AFFIDAVIT OF ATTORNEY FOR PLAINTIFF OF NOTICE TO DEFENDANT OF AN ORDER OVER-RULING DEMURRER, AND GRANTING TIME TO ANSWER.

[Name of Court.]

[Venue.]

G H, being duly sworn, says: That he is the attorney of

A B, the plaintiff in this action, and that on the

day of

he served on 'I J, the attorney for C D, the [or a] defendant in the action, a written notice that the court on the day of overruled the said defendant's demurrer 'to the complaint in this action, and granted to said defendant days to answer the complaint in the action.

[Jurat.]

G H.

FORM NO. 169.

APPLICATION TO ENTER DEFAULT OF DEFENDANT FOR FAILURE TO ANSWER AFTER OVER-RULING HIS DEMURRER,

AND GRANTING HIM TIME TO ANSWER.

[Name of Court.]

C D, the [or a] defendant in this action, having appeared and demurred to the complaint therein, and said demurrer having been on the day of overruled by the court, and

day of

the court having on said day granted to said defendant C D days time to answer the complaint in the action, and notice having been served on I'J, the attorney of said defendant C D, on the of such order, and of said time granted, and said defendant having failed for more than the service of said notice to file an answer in the action, A B, the plaintiff in the action, applies to the clerk of the court to

days after