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mand or in his aid, shall do any thing touching the duties of such officer.
§ 104. In all other cases, the action shall be tried in the county in which the parties or any of them shall reside at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute.
$ 105. If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant shall, before the time for answering expire, demand in writing that the trial be had in the proper county.
Of the manner of commencing Civil Actions.
Section 106. Actions, how commenced.
107. Summons, requisites of.
claim is made, in which case notice to he given.
to pay costs.
$ 106. Civil actions in the courts of record of this state, shall be commenced by the service of a summons.
In this title we have provided a mode, simple and uniform, for commencing all civil actions. At present, as is well known, there are three modes of commencing a suit at law; by a capias against natural persons; a summons against corporations, and a declaration against either, none of them indicating to the defendant plainly what he is charged with, or what he is expected to do. In equity, the suit is commenced by bill and subpena.
We have substituted a summons and complaint in all cases ; the service of the summons to be deemed the commencement of the suit, and to be accompanied by a copy of the complaint, except where, in the case of a defendant made a party for having a lien on the property which is the subject of the suit, no claim is made against him personally, and then a notice of the object of the suit is to suffice. The complaint will inform the defendant of the nature and particulars of the demand, and the form of the summons is such as to indicate to the defendant precisely what he is required to do.
107. The summons shall be subscribed by the plaintiff, or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state, to be therein specified, within twenty days after the service of the summons, exclusive of the day of service.
108. The plaintiff shall also insert in the summons a notice, in substance as follows:
1. In an action arising on contract, for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint:
2. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court, at a specified time and place, (after the expiration of the time for answering,) for the relief demanded in the complaint.
$ 109. A copy of the complaint shall be served with the summons, except, that in the case of a defendant against whom no personal claim is made, in an action
the partition of real property, or for the foreclosure of a mortgage, the plaintiff may, instead of a copy of the complaint, 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, 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 saine.
Similar to the rule now existing in equity, in relation to mortgage cases. § 110. If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff.
$ 111. In an action affecting the title to real property, the plaintiff, at any time after the commencement thercof, may file with the clerk of the 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 affected thereby; and, if the action be for the foreclosure of a mortgage, the date of the mortgage, the parties thereto, and the time and place of recording the same. In such case only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property aflected thereby.
Conformable to 2 R. S. 174, sec. 43.
$ 112. The summons may be served by the sheriff of the county, where the defendant may be found, or by any other person, not a party to the action. The service shall be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons, may, at his option, by an endorsement on the summons, fix a time, for the service thereof, and the service shall then be made accordingly.
§ 113. The summons shall be served by delivering a copy thereof, as follows:
1. If the suit be against a corporation, to the president, or other head of the corporation, secretary, cashier, or managing agent thereof:
2. If against a minor, under the age of fourteen years, to his father, mother, or gardian, or if there be none within the state, then to any person having the care and control of such minor :
3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, in consequence of habitual drunkenness, and for whom a committee has been appointed, to such committee :
4. In all other cases, to the defendant personally.
$ 114. When the person on whom the service is to be made, cannot, after due diligence, be found within the state, the plaintiff, upon an affidavit of the fact, may obtain from a judge of the court, or a county judge, an order that the service be made by the publication of the