agents to de

books, &c., to

SEC. 8. Officers or agents, contemplated in this Act, shall deliver to their successors in office all moneys, books, Officers or papers and other property belonging to the office and take a liver moneys, receipt therefor, and when from the Territorial Treasurer their succesdeposit an attested copy thereof with the Auditor of Public sors. Accounts; when from the County Treasurer deposit said copy with the Clerk of the County Court, which copies shall be deposited within thirty days from the date of receipt.

AN ACT

To Regulate Proceedings in Civil Cases in the Courts of Justice of this Territory, and to Repeal certain Acts and Parts of Acts.

TITLE L

Of the Form of Civil Actions and the Parties thereto.

of action.

SEC. 1. Be it enacted by the Governor and Legislative Assembly of the Territory of Utah: That there shall be in Only one form this Territory but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs.

Parties

SEC. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant. designated. SEC. 3. When a question of fact, not put in issue by the pleadings, is to be tried by jury, an order for the trial may be Question of made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.

SEC. 4. Every action shall be prosecuted in the name of Action in the real party in interest, except as otherwise provided in this whose name Act.

prosecuted.

Set-off when

SEC. 5. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any setoff or other defense, existing at the time of, or before notice of the assignment; but this Section shall not apply to a negotiable not prejudiced promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.

Action by

SEC. 6. An executor, or administrator, or trustee of an express trust, or a person expressly authorized by statute, may executor. sue without joining with him the person or persons for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this Section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.

When married

SEC. 7. When a married woman is a party, her husband shall be joined with her; except that: First-When the action woman is concerns her separate property, she may sue alone. Second- Pic

party,

exeptions.

B

Defense by.

When the action is between herself and her husband, she may sue or be sued alone.

SEC. 8. If a husband and wife be sued together, the wife may defend for her own right.

SEC. 9. When a minor is a party, he shall appear by Minor, how to guardian, who may be appointed by the Court in which the action is prosecuted, or by a Judge thereof.

appear.

Guardian,how

SEC. 10. The guardian shall be appointed as follows: First-When the minor is plaintiff, upon the application of appointed. the minor, if he be of the age of fourteen years; or, if under that age, upon the application of a relative or friend of the minor. Second-When the minor is defendant, upon the application of the minor, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the minor.

Injury to child, &c.

Plaintiff who

SEC. 11. A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child; and a guardian for the injury or death of his ward.

SEC. 12. All persons having an interest in the subject of may be joined. the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this Act. SEC. 13. Any person may be a defendant, who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.

Defendant, who may be made.

be joined.

SEC. 14. Of the parties to the action, those who are united Parties, who to in interest shall be joined as plaintiffs, or defendants; but if the consent of any one, who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the Court, one or more may sue or defend for the benefit of all. Tenants in common, joint tenants, or co-partners, or any number less than all may jointly or severally bring or defend, or continue the prosecution or defense, or any action for the enforcement of the rights of such person or persons.

Seperately

SEC. 15. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange liable may be and promissory notes, and sureties on the same or separate instruments, may all, or any of them, be included in the same action, at the option of the plaintiff.

joined.

SEC. 16. An action shall not abate by the death, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the Death of party death, or disability, of a party, the Court, on motion, may

or transfer

of interest.

allow the action to be continued by or against his representative or successor in interest. In the case of any other transfer

of interest, the action may be continued in the name of the original party, or the Court may allow the person to whom the transfer is made to be substituted in the action. After verdict shall have been rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.

to determine.

SEC. 17. The Court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when Controversy, a complete determination of the controversy cannot be had where court without the presence of other parties, the Court shall order them to be brought in, and thereupon the party directed by the Court shall serve a copy of the summons in the action, and the order aforesaid in like manner of service of the original summons, upon each of the parties ordered to be brought in, who shall have ten days, or such time as the Court may order, after service in which to appear and plead; and in case such party fail to appear and plead within the time aforesaid, the Court may cause his default to be entered, and proceed as in other cases of default, or may make such other order as the condition of the action and justice shall require.

TITLE II.

Of the Place of Trial of Civil Actions.

Where subject

situated.

SEC. 18. Actions for the following causes shall be tried in the County in which the subject of the action, or some part thereof, is situated, subject to the power of the Court to change matter is the place of trial, as provided in this Act: First-for the recovery of real property, or of an estate, or interest therein, or for the determination in any form of such right or interest, or for injuries to real property. Second-for the partition of real property. Third-For the foreclosure of a mortgage of real property; provided, that where such real property is situate partly in one County and partly in another, the plaintiff may select either of said Counties, and the County so selected shall be the proper County for the trial of any or all of such actions as are mentioned in the First, Second and Third subdivisions of this Section.

Proviso.

arose.

SEC. 19. Actions for the following causes shall be tried in the County where the cause, or some part thereof, arose, subject to the like power of the Court to change the place of trial: First-For the recovery of a penalty or forfeiture of action imposed by statute; except, that when it is imposed for an offence committed on a lake, river or other stream of water, situated in two or more Counties, the action may be brought in any County bordering on such lake, river or stream, and opposite to the place where the offence was committed. Second -Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his

reside.

office, or against a person who, by his command or in his aid,. does anything touching the duties of such officer.

SEC. 20. In all other cases, the action shall be tried in the Where parties County where the cause of action originated, or in which the defendants, or any one of them, may reside at the commencement of the action: or, if none of the defendants reside in the Territory, or if residing in the Territory, the County in which they so reside be unknown to the plaintiff, the same may be tried in any County which the plaintiff may designate in his complaint; and if any defendant, or defendants, may be about to depart from the Territory, such action may be tried in any County where either of the parties may reside, or service be had, subject, however, to the power of the Court to change the place of trial, as provided in this Act.

Changing place of trial.

SEC. 21. 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, before the time for answering expire, demand in writing that the trial be had in the proper County, and the place of trial be thereupon changed by consent of parties, or by order of the Court, as is provided in this Section. The Court may, on motion, change the place of trial in the following cases: First-When the County designated in the complaint is not the proper County. Second-When there is reason to believe that an impartial trial cannot be had therein. Third-When convenience of witnessess and the ends of justice would be promoted by the change. Fourth-When from any cause the Judge is disqualified from acting in the case. When the place of trial is changed, all other proceedings shall be had in the County to which the place of trial is changed; unless otherwise provided by consent of the parties in writing duly filed, or by order of the Court; and the papers shall be filed, or transferred accordingly.

TITLE III.

Of the Manner of Commencing Civil Actions.

SEC. 22. Civil action in the courts shall be commenced by the filing of a complaint with the Clerk of the Court, and Civil actions, the issuance of a summons thereon; provided, that after the filing of the complaint a defendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, answer or demurrer, shall be deemed a waiver of the summons.

how commenced in the District Court.

Complaint,

SEC. 23. The Clerk shall endorse on the complaint the how indorsed. day, month and year the same is filed, and at any time within one year after filing of the same, the plaintiff may cause to be issued a summons thereon. The summons shall be issued by the Clerk under the seal of the Court.

Form of
Summons.

SEC. 24. The summons shall state the parties to the action, the Court in which it is brought, the County in which the complaint is filed, the cause and general nature of the action, and require the defendant to appear and answer the complaint, within the time mentioned in the next Section,

after the service of summons, exclusive of the day of service; or that judgment by default will be taken against him, according to the prayer of the complaint, briefly stating the sum of money or other relief demanded in the complaint.

Answer, when

SEC. 25. The time in which the summons shall require the defendant to answer the complaint shall be as follows: First-If the defendant is served within the County in which to be made. the action is brought, ten days. Second-if the defendant is served out of the County, but in the District in which the action is brought, twenty days. Third-In all other cases, forty days.

Summons.

SEC. 26. There shall also be inserted in the summons a notice in substance as follows: First-In an action arising on Notice to be contract for the recovery only of money or damages, that the inserted in plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint. Second-In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded therein.

Notice in

SEC. 27. In an action for the foreclosure of a mortgage upon real property, or affecting the title or possession of real property, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may file with the Recorder of the County in which the property, or some part thereof is situated, a notice of the pen-action affecti'g dency of the action, containing the names of the parties, the real property. object of the action, and a discription of the property in that County affected thereby, and the defendant may also, in such notice, state the nature and extent of the relief claimed in the answer. 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; and in case of the foreclosure of such mortgage all purchasers or incumbrancers, by unrecorded deed or other instrument in writing made prior to the filing of such notice, and subsequent to the date of such mortgage, shall be deemed and held purchasers or incumbrancers subsequent to the filing of such notice, and subject thereto, unless they can show that at the time of filing the notice the plaintiff had actual notice of such purchase or incumbrance.

Summons, by

SEC. 28. The summons shall be served by the Territorial Marshal,.or the Sherriff of the County where the defendant is found, and, except as hereinafter provided, a copy of the complaint, certified by the Clerk of the Court in which the action is commenced, shall be served with the summons. whom served. When the summons shall be served by the Territorial Marshal, or the Sherriff of the County, it shall be returned with the certificate or affidavit of the officer, of its service, and of the service of the copy of the complaint, to the office of the Clerk of the Court in which the action is commenced. When the summons is served by any other person, as before provided, it shall be returned to the office of the Clerk of the Court in which the action is commenced with the affidavit of such