§ 2883. Second and third summons; effect thereof. Where it appears, by the return of the constable, to whom a summons has been duly delivered for service, that it was not served for any cause. a second summons may be issued by the same justice, in the same action within twenty days after the first summons was issued; and, upon the like return thereof, a third summons may be issued, within twenty days after the second was issued. The second or third summons, as the case may be, relates back to the time when the first summons was issued; and, with respect to all proceedings before actual service, the service thereof has the same effect, as if the first summons had been seasonably served. For the purpose of issuing a new summons, as prescribed in this section, a previous summons may be returned upon the sixth, or any subsequent day, before the return day thereof. § 2884. Where name of defendant is unknown. Where the plaintiff is ignorant of the name, or part of the name of a defendant, that defendant may be designated in the summons, and in any other process or proceeding in the action, by a fictitious name, or by so much of his name as is known, adding a description, identifying the person intended. The person so designated must thereupon be regarded as a defendant in the action, and as sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice, before whom the action is pending, must amend the proceedings already taken, by the insertion of the true or full name, in place of the fictitious name, or part of a name; and all subsequent proceedings must be taken under the name so inserted. From 2 R. S. 274, Part 3, ch. 2, tit. 4, § 282 (2 Edm. 282). § 2885. Return of summons. A constable who serves a summons, must at or before the time when the same is returnable, make and deliver to the justice a written return thereof, under his hand stating the time when, and the manner in which, he served it. A constable who fails seasonably to serve a summons, delivered to him for service, must make a written return thereof under his hand, stating that it was not served, and the reason why he failed to serve it. From 2 R. S. 228, Part 3, ch. 2, tit. 4, § 16 (2 Edm. 244). ARTICLE SECOND. Appearance of Parties. SEC. 2886. Parties may appear in person or by attorney. 2887. Guardian ad litem for infant plaintiff. 2888. Id.; for infant defendant. 2889. When constable, etc., may not act as attorney. 2890. Authority of attorney; how proved. 2891. Plaintiff to prove his case. 2892. Defendant may offer to compromise proceedings thereupon. § 2886. Parties may appear in person or by attorney. A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same, in person or by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs. From 2 R. S. 232, Part 3, ch. 2, tit. 4, § 39 and first clause of § 41 (2 Edm. 248). § 2887. Guardian ad litem for infant plaintiff. Before a summons is issued in behalf of, or an issue is joined without summons by, an infant plaintiff, the justice must appoint a competent and responsible person, nominated by the plaintiff or his general guardian, to appear as his guardian for the purpose of the action. The written consent of the person so appointed must be filed with the justice before his appointment. The guardian so appointed is responsible for the costs. From Id., § 40 (2 Edm. 248). See 1295, Consol. Act. § 2888. Id.; for infant defendant. After the service and return of a summons against an infant defendant, no other proceeding shall be taken in the action until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant, the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summons, or if he neglects or refuses to nominate, the justice may, on the application of the plaintiff, appoint any proper person as his guardian. The written consent of the person so appointed must be filed with the justice before his appointment. The guardian so appointed is not responsible for any costs. From Id., §§ 42, 43. See 1295, Consol. Act § 2889. When constable, etc., may not act as attorney. Subject to the provisions of sections 63 and 64 of this act, any person, other than the constable who served the summons or the venire, or the law partner or clerk of the justice, may be the attorney for a party to an action before a justice of the peace. From Id., § 44. § 2890. Authority of attorney; how proved. The attorney's authority may be conferred orally or in writing; but the justice shall not suffer a person to appear as an attorney, unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself, or another. From Id., § 45. § 2891. Plaintiff to prove his case. If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case. From Co. Proc. § 64, sub. 8. § 2892. Defendant may offer to compromise; proceedings thereupon. Except in an action to recover a chattel, the defendant may, upon the return of the summons and before answering, file with the justice a written offer to allow judgment to be taken against him for a sum therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more of the defendants, against whom a separate judgment may be taken. If the plaintiff thereupon, before taking any other proceeding in the action, files with the justice a written acceptance of the offer, the justice must render judgment accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time. From Co. Proc. § 64, part of sub. 15. See 1347, Consol. Act. § 2893. Justice to wait one hour. Upon the return of a summons duly served, the justice must wait one hour, after the time specified therein for its return unless the parties sooner appear. From 2 R. S. 233, Part 3, ch. 2, tit. 4, § 46 (2 Edm. 249). ARTICLE THIRD. Order of Arrest. SEC. 2894. Order of arrest; in what cases it may be granted. 2895. Id.; in what actions. 2896. Id.; upon what papers. 2897. Id.; its contents. 2898. Duty of constable. 2899. Return. When plaintiff notified must appear 2900. Constable to keep defendant in custody. 2901. Motion to discharge from arrest. 2902. Effect of discharging defendant. 2903. When plaintiff must prove extrinsic facts. § 2894. Order of arrest; in what cases it may be granted. At the time when the summons is issued, in an action specified in the next section, the justice who issues the summons must, upon the application of the plaintiff, and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant, in either of the following cases: 1. Where the defendant to be arrested is not a resident of the county. 2. Where the plaintiff is not a resident of the county; or if there are two or more plaintiffs, where all are non-residents thereof. 3. Where it appears to the satisfaction of the justice, by the affidavit of the plaintiff or another person, that the defendant is about to depart from the county, with intent not to return thereto. But such an order cannot be granted, where the defendant, against whom it is applied for, is a female. From 2 R. S. 228, Part 3, ch. 2, tit. 4, § 17 (2 Edm. 244) and Id., 253, § 158 (2 Edm. 270). § 2895. Id.; in what actions. An order of arrest shall not be granted, except where the action is brought for one or more of the following causes: 1. To recover a fine or penalty. 2. To recover damages for a personal injury, of which a justice of the peace has jurisdiction; an injury to property, including the wrongful taking, detention, or conversion of personal property; misconduct or neglect in office, or in a professional employment; fraud; or deceit. But this subdivision does not apply to a claim for damages in an action to recover a chattel. 3. To recover for money received, or to recover a chattel; where it appears that the money was received, or that the chattel was embezzled or fraudulently misapplied by a public officer, or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment; or by a factor, agent, broker, or other person in a fiduciary capacity. From Id., § 158 and ch. 300 of 1831, parts of §§ 30 and 31 (4 Edm. 472). See $$ 549, 550. § 2896. Id.; upon what papers. Where it appears to the justice. by the affidavit of the plaintiff or another person, that a sufficient cause of action exists, against the defendant, and that the case is within the provisions of the last two sections, he must grant the order of arrest. But before granting it, he must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least one hundred dollars. From 2 R. S. 228, Part 3, ch. 2, tit. 4, last clause of sub. 2 of § 17 and § 19 (2 Edm. 244). See §§ 728, 729, 730, 810-816 and 3347, sub. 6. § 2897. Id.; its contents. The order must be subscribed by the justice and indorsed upon or attached to the summons. It must briefly recite the ground of arrest; and it must direct the constable, who serves the summons to arrest the defendant; to bring him forthwith before the justice; and to notify the plaintiff of the arrest, if he can do so with reasonable diligence. From Id., § 20. § 2898. Duty of constable. The constable must, at the time of serving the summons, execute the order of arrest, by arresting the defendant, and taking him forthwith before the justice. If the justice is absent, or unable to try the action, the constable must forthwith take the defendant before another justice of the same town or city; who must take cognizance of the action, and proceed therein, as if the summons had been issued, and the order of arrest had been granted by him. From Id., § 21. See § 3151. § 2899. Return. When plaintiff notified must appear. The constable, executing the order of arrest must forthwith deliver to the justice the order, and a written return thereto, under his hand, stating the manner in which he has executed it, and either that he has notified the plaintiff, or that he could not do so, with reasonable diligence. If he returns that he has notified the plaintiff, the latter must appear within one hour after the defendant is brought before the justice; otherwise judgment of nonsuit must be rendered against him. From Id., § 22. § 2900. Constable to keep defendant in custody. The constable executing the order, or another constable, by direction of the justice, must keep the defendant in custody, until he is discharged by the order of the justice, or judgment is rendered in his favor but the detention shall not, in any case, exceed twelve hours from the time when the defendant is brought before the justice; unless, within that time, a venire is issued, or the trial of the action is commenced, or unless either is delayed with the express assent of the defendant. From Id., § 25. § 2901. Motion to discharge from arrest. A defendant, arrested as prescribed in this article, may, without notice, upon the appearance of the plaintiff before the justice, or at any time afterwards before judgment, upon two days' notice given personally to the plaintiff, or to his agent or attorney who appeared for him before the justice. apply to the justice for an order, discharging him from the arrest. The application may be founded upon the papers upon which the order of arrest was granted, and upon the complaint, if it has been made. The justice must grant the application, where it appears that the case is not within the provisions of sections 2894 |