Will lie in behalf of state to compel a railroad corpora-
tion to perform its duty as a carrier of freight and passengers....... 347
In such a case, that state may suffer no direct pecuniary
injury is not the test whether proceedings for the writ should be
brought
State not bound to inquire whether some of its citizens
have received special injuries for which they may maintain private
actions for damages by reason of neglect of railroad corporation to exer-
cise its franchises, and the fact that such injuries have been received
does not preclude the state from the remedy of mandamus..... 347, 348
For neglect of railroad to properly discharge its duty as a
carrier, state has no other adequate remedy except by mandamus.... 348
When peremptory writ invoked by people, in their own
behalf, to compel railroad corporation to resume discharge of its
duties as a carrier, under its existing rules and regulations, what the
form of the writ need not specify
Discretion conferred upon railroad corporations by § 28,
Chap. 140, Laws of 1850, as amended by Chap. 133, Laws of 1880,
does not interfere with power of court to compel, by mandamus, the
performance of the duty of receiving and transporting freight and
passengers.
See APPEAL; ATTORNEY-GENERAL; RAILROADS.
MARRIED WOMAN-Exemption of, from arrest in actions for
her personal torts, committed in the management or control of her
separate business has ceased, in all cases wherein the law expressly
authorizes the arrest of females, in general terms ...
At common law and before the Code of Civil Procedure, a
married woman could not be held to bail in an action founded upon her
personal tort, though the husband might be so held and required to
give bail for both himself and his wife
See ARREST, ORDER OF; HUSBAND AND WIFE; Joinder.
MORTGAGE, FORECLOSURE OF - In action for, upon real prop-
erty, suit is not upon bond, but to enforce collateral security of the
mortgage; the contract between mortgagor and mortgagee is only
broken in default of performing conditions of bond..................
MOTION - To revive action, see ACTION, CONTINUANCE OF.
To compel election between answer and demurrer, see ANSWER.
See ORDER TO SHOW CAUSE.
TO QUASH Usually applies to existing writs and process,
and not to mere attempts to obtain them
Practice on moving to quash alternate writ of mandamus, 346
NEW TRIAL Rule of law applicable to granting of, by appel-
late court, for errors committed in the admission or rejection of evi-
dence upon trial of common law action, has not been changed by
§ 1003 of the Code; that section applies only to cases in equity.
NON-RESIDENTS- May institute suits in courts of the State, and
have the remedies provided by Code
NONSUIT - Determines simply that on facts presented plaintiff
cannot recover; it decides particular action, but does not determine
rights of parties except as to the precise facts presented at the time it
is ordered
NONSUIT- Continued.
Voluntary and adjudicated, difference between..
What is proper practice to avoid, in action of trespass, quare
clausum fregit, brought in justice's court, and on plea of title tried in
a higher court
NOTARIES PUBLIC-See AFFIDAVITS.
NOTICE OF ARGUMENT- See NOTICE OF TRIAL.
OF TRIAL-Service of a notice of trial or of argument is not a
waiver of the right to amend pleadings, of course......
137
NULLITY – What error in summons does not make it a nullity... 483
ORDER TO SHOW CAUSE-Motion on, returnable in less than eight
days, comes before court same as if brought on upon ordinary notice,
the order simply limiting time of notice ..
Right to open and close argument upon motion on, belongs to
moving party, and not affected by preliminary objection in nature of
demurrer ore tenus
PARTITION - Action for present partition and sale of real prop-
erty cannot, while life tenant is living, he maintained by tenants in
common of vested remainder, so as to dispose of all interests includ-
ing the particular estate, without the assent of the owner of the
particular estate
...... 100
When a sale in, cannot be had by tenants in common of a
vested remainder, even subject to the interests of the particular estate. 100
Section 1533 of the Code regulating action for partition, by
joint tenants and tenants in common of a vested remainder or rever-
sion, is merely declaratory of the law as it previously existed....... 100
Where lands situate in different counties, and defendants in
the actions are not the same, the causes of action cannot be joined,
and the actions cannot be consolidated .....
What may be allowed as disbursements in action for, see
DISBURSEMENTS.
PARTNERSHIP-Upon the death of one of two members of a
firm, the legal rights under firm contracts and causes of action, and
the sole right to collect the partnership debts, remain in the survivor, 106
See REAL PROperty, RedemPTION OF.
PARTY TO ACTION See EJECTMENT.
PERSONAL INJURY-Includes an actionable injury to the person
of the plaintiff or of another...
PETITION - For leave to bring action, practice on....... ....... 296
See GUARDIAN, GENERAL; ADMINISTRATION, LETTERS OF;
VERIFICATION.
For probate of will executed in duplicate, see WILLS,
DUPLICATE.
PLACE OF TRIAL- When a domestic corporation is sued by a
non-resident, and the action is not one specified in $$ 98, 983 of the
Code, such corporation has the right to have trial take place in county
designated by its certificate of incorporation as its principal place of
business....
Right to change, when action is not one specified in SS 982,
983 of the Code, is not absolute nor jurisdictional and may be waived, 114
PLACE OF TRIAL- Continued.
Within what time motion for, should be made according to
It seems that SS 781, 783, enlarging time, cannot be resorted to
in order to relieve from a compliance with § 986; at least, when no
cause is shown for extending time, and there is no direct application
for such relief.....
114, 115
Upon a motion for, on the ground that the county designated
is not the proper one within § 984, convenience of witnesses cannot be
considered; convenience of witnesses and the promotion of the ends
of justice are grounds for a separate motion...
PLAINTIFF See EJECTMENT.
PLEADING-Party may amend his pleadings, of course, within
the time allowed by law, and the amended, must stand, unless made
for the purpose of delay, and his adversary would thereby lose the
benefit of a term for which the cause was, or might be, noticed........... 136
Service of a notice of trial or argument is not a waiver of the
right to amend, of course.....
What is a sufficient pleading of a foreign statute
In action for foreclosure of mortgage upon real property,
where mortgage is collateral to bond, a breach in performance of
condition of bond must be averred......
answered and demurred to....
Well settled rule of, that same cause of action cannot be both
What does not amount to both answer and demurrer..
Rule of, when corporate existence is to be put in issue.
See ACTION, CAUSE OF; ALLEGATION; ANSWER; CORPORATIONS.
PRESUMPTION - Of ownership of corporate stock, see STOCK,
CORPORATE.
PROBATE-See WILLS, DUPLICATE.
REVOCATION OF-See SURROGATE.
PROHIBITION, WRIT OF-In support of, to restrain summary
proceedings on the ground that the petition does not show a case
wherein such proceedings may be employed, it is not to be presumed
that the officer before whom pending, will improperly determine such
proceedings, and mere apprehension that he will do so does not war-
rant a resort to the writ....
RAILROADS-Are public highways, created for public use, and
permitted to be owned, managed and controlled by corporations
formed for such purposes, because the best and most advantageous
enjoyment thereof, is thereby secured to the public.....
In what sense they are to be regarded as private or trading
corporations.
Circumstances of private ownership, profit and control, do
not conflict with their duties and obligations to the public ..... 346, 347
General railroad act (Chap. 140, Laws 1850), which authorizes
constructing, maintaining and operating of, is general charter of, and
the duty of furnishing sufficient accommodations for transportation
of all freight and passengers, upon payment of the freight or fare, is
imposed as a public trust...
The duty of carrying freight and passengers is the great and
sole public good for which railroad corporations are created
Upon what, the power and obligation of the State to compel
performance of such duty, rest.
- Difference in the relations which exist between a carrier upon
an ordinary highway, the State and a private person, and those which
exist between a carrier by railroads and the same parties...... .... 347
The discretion conferred upon railroad corporations, by § 28,
Chap. 140, Laws 1850, as amended by Chap. 133, Laws 1880, does not
justify a general or partial suspension of the duty of receiving and
transporting freight and passengers..
When railroad corporation cannot refuse to perform its public
duties as a carrier on account of a controversy with its skilled
employes, as to the rate of wages, which results in a strike...
See ATTORNEY-GENERAL; MANDAMUS, WRIT of.
REAL PROPERTY-See PARTITION; MORTGAGE, FORECLOSURE OF.
Provisions of Code controlling proceedings in action to deter-
mine claim to, contemplate that plaintiff should be continued in pos-
session during pendency of action.....
Under what circumstances plaintiff in action to determine
claim to, will not be affected by a judgment for rent, recovered by
defendant, in action brought by him against tenants of plaintiff,
holding the premises in controversy....
- REDEMPTION OF - When sold under execntion, by surviving
member of partnership, as a creditor by judgment, what papers are
sufficient....
It seems that if surviving member of partnership having
the right to redeem dies, redemption could be made by his executor
or administrator....
Proceedings for are statutory, and to be strictly construed. 107
RECEIVER PENDENTE LITE-Cannot be appointed on con-
current demands in answer and reply, where the case is not brought
within subd. 1 of § 713 ...
RELIEF - Party should demand that, to which he supposes him-
self entitled; but he is not precluded from declining to take any part
of, or from demanding additional warranted by the facts....
See RECEIVER, PENDENTE LITE.
Demand for, when given controlling effect.......
RESIDENCE- What length of, required in order to maintain action
for a separation, when parties have been married without the State
and have become residents of the State, See SEPARATION.
To court of appeals must be certified by clerk of court
Should be made by responsible officer under sanction of his
official oath.......
Fees of clerk for making, are the same in special proceeding
as in action......
Fees of clerk for making; fees when he adopts and certifies
the return as prepared by parties....
Duty of clerk to make, cannot be converted by agreement of
parties into merely certifying the papers as prepared by them.. 339, 342
RULES - GENERAL RULES OF PRACTICE -- Rule 2......
OF COURT OF APPEALS - Rule 1 ................
SEPARATION-Action for, cannot be sustained where parties
married without the State, and have become residents of the State,
unless the length of residence has been such as is required by subd. 3
of § 1763...
Under what circumstances action for decree of, cannot be sus-
tained by wife against husband......
Action for, is statutory, and must conform to terms of the
See MAINTENANCE, SEPARATE.
What will not constitute abandonment in action for.......
When aid of court can be invoked for........
For a father to insist upon the right to name his own children,
even if the insistence be unreasonable, is no ground for judicial
interference...
That husband and wife cannot live together in harmony is no
ground for a judicial separation.....
SERVICE - See SUMMONS, SERVICE OF.
BY PUBLICATION. See SUMMONS, SERVICE OF.
SHERIFF - Position and rights of, as bail, see ARREST, ORDER
OF; BAIL.
SPECIAL PROCEEDING - Application for an award of costs in
a surrogate's court is a proceeding in a special proceeding, and any
forms or modes of procedure in relation to applications for costs,
which may be prescribed in the former statutes, must still prevail, so
far as relates to proceedings begun prior to August 31, 1881..
Provisions of the Code declaring under what circumstances
costs may be allowed, and the limit of each allowance, are not provi-
sions which regulate the proceedings to be taken in a special
proceeding....
Fee for making return in, on appeal, see RETURN.
STATE-See ATTORNEY-GENERAL; MANDAMUS, WRIT OF; RAILROADS.
STATUTE-See LAW, STATUTE.
STAY OF PROCEEDINGS - What is not, see TIME.
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