Page images
PDF
EPUB

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 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.

137. In the cases mentioned in section 135, the service of the summons shall be deemed complete, at the expiration of the time prescribed by the order for publication.

138. 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 service.

139. From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent 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 in pleading and amendments.

CHAPTER I.

The Complaint.

140. 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.

141. The first pleading on the part of the plaintiff is the complaint.

142. The complaint shall contain:

1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial

to be had, and the names of the parties to the action, plaintiff and defendant.

2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.

3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

CHAPTER II.

The Demurrer.

3143. The only pleading on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the service of the copy of the complaint.

2144. The defendant may demur to the complaint, when it shall appear upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or., 2. That the plaintiff has not legal capacity to

or,

que;

3. That there is another action pending between the same parties, for the same cause; or,

4. That there is a defect of parties, plaintiff or defendant; or,

5. That several causes of action have been improperly united; or,

6. That the complaint does not state facts sufficient to constitute a cause of action.

145. The demurrer shall distinctly specify the grounds of objection to the complaint. Unless it do

so, it may be disregarded. It may be taken to the whole complaint, or to any of the alleged causes of action stated therein.

146. If the complaint be amended, a copy thereof must be served on the defendant, who must answer it within twenty days, or the plaintiff, upon filing with the clerk, on roof of the service, and of the defendant's omission, may proceed to obtain judgment, as provided by section 246, but where an application to the court for judgment is necessary, eight days' notice thereof must be given to the defendant.

147. When any of the matters enumerated in section 144, do not appear upon the face of the complaint, the objection may be taken by answer.

148. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.

CHAPTER III.

The Answer.

149. The answer of the defendant must contain. 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.

2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition.

E

150. The counterclaim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

1. A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action.

2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.

The defendant may set forth, by answer, as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished.

151. The defendant may demur to one or more of several causes of action stated in the complaint, and answer the residue.

152. Sham and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court may in their discretion impose.

CHAPTER IV.
The Reply.

2153. When the answer contains new matter, constituting a counterclaim, the plaintiff may, within twenty days, reply to such new matter, denying

« PreviousContinue »