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peculiar circumstances, should, therefore, be carefully pondered over, and every one of those remedies should be distinctly and in terms asked for; unless, under the circumstances of the case, it be thought better to waive them in any respect. Injunction, in particular, cannot be granted at all in respect of facts existent at the date of the complaint, unless that remedy be specially prayed for; and, where the appointment of a receiver is part of the relief sought before, or as part of the judgment, a demand to that effect must also be inserted. In fact, every species of relief which is or may be required, should be asked for specifically and in terms; and in no case should the usual concluding clause, praying " for such further or other relief as the court may direct,” be omitted on any account. In actions for the recovery of real or specific personal property, it must not be forgotten, that a claim for damages for withholding, and also, in the former case, a claim for mesne profits is, in all cases, compatible with a claim for the recovery of the property itself; and a prayer to this effect should always, as a general rule, be subjoined to the main relief demanded.
The pleader must, however, take special care that in praying relief, he does not ask for any that is inconsistent. Thus in Linden v. Hepburn, 3 Sandf. S. C. R. 668, 6 How. 188, where the plaintiff sought to enforce a forfeiture, and also to obtain equitable relief, in respect of the same transaction, it was held that he could not ask for both conjointly, but must make his election between the two species of remedy.
See, also, as to alternative relief of an inconsistent nature, the cases cited at the outset of this chapter, in reference to sec. 167.
Where, however, the plaintiff is entitled to both legal and equitable relief under the facts averred, and such relief is not inconsistent in its several parts, he may obtain it by means of the same proceeding, and it should be prayed for accordingly. -Linden v. Hepburn, above cited; Getty v. The Hudson River Railroad Company, 6 How. 269, 10 L. 0. 85.
The general requisites of complaint, separately considered, having thus been gone through, it remains to notice the proceedings necessary for its due completion and service. This branch of the subject has, however, in a great measure, been anticipated in the chapter as to the formal requisites of pleading. The manner in which the complaint, when prepared, must be copied, subscribed, and verified, is there fully prescribed; and it would be superfluous to enter a second time upon the same details. The only remark necessary, is, that the strictest compliance with the directions there given, is virtually essential. The complaint having been perfected, a copy of it must be served upon the opposite party, either personally as annexed to the summons, or on him or his attorney afterwards, if he give regular notice of appearance, and demand a copy. The mode of service, in this latter case, differs in no respect from that of ordinary papers in the suit, and will be found prescribed in the chapter devoted to the consideration of those subjects.
The proceedings to be taken by the defendant for that purpose, the time within which the copy so demanded by him must be served, and the consequences to the plaintiff if he omit to do so, will be found fully detailed in the succeeding chapter. The questions as to where it may, or may not be expedient to serve a copy of the complaint in company with the summons, have also been before enlarged upon, in the chapter devoted to the consideration of that proceeding. As a general rule, it will be advisable in all cases, for the obvious reason, that an omission to do so will enable the defendant, as of course, to obtain additional time to answer. Where, however, the defendants are numerous, and are likely to appear in classes, and more than one by the same attorney, service of the summons alone will usually be the more convenient course; and, when the service is by publication, that is the only admissible mode.
As before also noticed, the filing of the complaint is, at one time or other, essential. In ordinary cases, it seems it need not be placed on record until the actual entry of judgment, whether a copy have, or have not, been served on the opposite party, notwithstanding the decision to the contrary effect in Toomey v. Shields, 9 L. O. 66.
Where service takes place by publication, it is, however, necessary that the complaint should be filed at once, and before the issuing of the summons, or the proceeding will be irregular. In real actions, also, it is now necessary, under the recent amendment of sec. 132, that the complaint should be filed at the outset of the suit, inasmuch as, until that is the case, the notice of pendency of action cannot be placed on record. Under the Code of 1849, this was otherwise, and it was there provided that the notice in question might be given at “the time of commencing the action,” without reference to the complaint being, or not being previously filed. The filing may, however, be compelled at any time by the defendant, under sec. 416.-See next chapter.
The mention of this subject naturally introduces us to the concluding topic of this chapter, i. e., the collateral proceedings advisable to be taken by the plaintiff, in certain cases, in connection with, and at the time of the preparation and service of his first pleading. These proceedings are two-fold ; the first of them being the notice of the object, and the second, the notice of the pendency of the action.
The following is the section of the Code in reference to the former :
$ 131. In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant with the summons 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.
Under the Code of 1849, this proceeding was confined exclusively to actions for partition and foreclosure, and was not admissible in any others. This defect is now removed, and, therefore, under any circumstances whatever, a notice of this sort may now be served upon mere formal defendants. The plaintiff must, however, be careful not to do so with respect to any party against whom substantial relief is sought. See this subject, already considered, under the head of Summons. For forms, see Appendix.
The second proceeding above alluded to, is the notice of pendency of action, commonly called notice of lis pendens, which, in all real estate cases, is admissible, and, in the case of foreclosure, indispensable,
The provisions of section 132, on this subject, are as follows:
§ 132. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, 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 a 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
It will be seen, then, that this proceeding is admissible at any stage of the suit, after the complaint is filed. In practice, however, it is universally taken at the commencement. The advantages of this course are obvious, in every case, and under all circumstances; and that, not merely in the county where the action is brought, but in every county in which there are any lands which can be affected by it, in case the property be scattered. No prudent practitioner will neglect taking this precaution, or will neglect taking it at the outset. By doing so, he places a stop upon the property, and prevents it from being subsequently dealt with, in prejudice of his client's rights. By omitting to do so, he leaves those rights still liable to be defeated by subsequent acts, notwithstanding the steps taken in the suit for their actual assertion.
In foreclosure, the filing of such a notice at least twenty days before judgment is rendered, is, as will be seen, a condition precedent to obtaining the relief demanded.-See also Rule 49, of the supreme court, and Brandon v. McCann, 1 C. R. 38. Inasmuch as a full description of the suit in general, and particularly of the property affected, is a necessary incident to the validity of a notice of this description, it seems to follow, as a necessary consequence, that if the plaintiff, after filing his notice, subsequently amend his complaint in substantial matter, either as regards the parties to the action, the premises affected, or the relief claimed, a new notice should be filed in accordance with the fresh matter pleaded, and such is the general practice.
Forms of this proceeding are given in the Appendix.
The due filing of the notice may be proved, either by affidavit, or by the certificate of the county clerk with whom it is filed. In all cases, therefore, a duplicate copy should be kept, on which that certificate may be endorsed; or for the purpose of being annexed to the required affidavit, where that form is adopted.
The proceedings of the plaintiff, in the event of the defendant's failure to answer in due time, will be found detailed id a
subsequent chapter of the work, under the head of Judgment by Default.
The various provisional remedies which are obtainable by the plaintiff, either as collateral with, or subsequent to the complaint, are also separately considered in a subsequent division of the work.*
OF THE DEFENDANT'S COURSE OF ACTION, ON BEING SERVED WITH
The present chapter will be devoted to the consideration of the different proceedings, which may, or which must be taken by the defendant, on being served with process, including, in the last place, the time allowed to him for the purpose of pleading in the action.
In the first instance, the summons itself should be carefully examined, to see whether it be or be not in any manner defective ; and, if so, the objection on that ground must be taken at once. The proper proceeding for this purpose is a motion.See Nones v. The Hope Mutual Insurance Company,8 Barb. S.C. R. 541; 5 How. 96, 3 C. R. 161; and that motion must be made at once, and without any previous notice of appearance. If such notice be given, the defendant, by taking that course, will have admitted himself to be regularly in court, and, having done so, all defects in the summons, or its service, or even the want of any summons at all, will then become immaterial.-Dix v. Palmer, 5 How. 233, 3C. R. 214.-Flynn v. The Hudson River Rail
* In the recent case of Bristol v. Rensselaer and Saratoga Railroad Company, 9 Barb. S. C. R. 158, published since the earlier portions of this chapter went to press, the principle that the plaintiff will not be at liberty to make out his cause of action by proving facts not alleged in his complaint, is positively and strictly laid down. The omissions of allegations that the defendants were common carriers,—that they had received, or were to receive, compensation for carrying the goods, for the non-delivery of which the action was brought, and that they were to receive a reward for carrying those goods, were beld to constitute fatal defects. No allegations having been made of those facts, it was accordingly decided that they could not be proved. If, too, a demand of the goods be necessary, to show the plaintiff's right of action, it ought also to be alleged in the complaint. The Referee's Report in that case was accordingly set aside, on the above grounds.