What proof of service required.

SEC. 76. Proof of the service of summons must be as follows:

First. If served by the sheriff, his certificate thereof. Second. If by any other person, his affidavit thereof; or, Third. 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, if the same has been deposited; or, Fourth. The written admission of the defendant. SEC. 77. In case of service otherwise than by publicase of per- cation, the certificate or affidavit must state the time and

Return in

sonal service.

place of service.

SEC. 78. From the time of the service of the summons and of a copy of the complaint in a civil action, where service of a copy of the complaint is required, or of the completion of the publication when service by publication is ordered, the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings. The 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.

SEC. 79. The pleadings are the formal allegations Definition of by the parties of their respective claims and defenses for the judgment of the court.

pleadings.

SEC. 80. All the forms of pleadings in civil actions, Sufficiency of and the rules by which the sufficiency of the pleadings

pleadings.

Pleadings on

part of plain

tiff.

Pleadings on

part of defendant.

shall be determined, shall be those prescribed in this act. SEC. 81. The only pleadings allowed on the part of the plaintiff are:

First. The complaint;

Second.

The demurrer to the answer;

Third. The replication to defendant's answer.

And on the part of the defendant:

First. The demurrer to the complaint;

SEC. 82.

CHAPTER II.-The Complaint.

The first pleading on the part of the plain

tiff is the complaint.

SEC. 83. The complaint must contain:

First. The title of the action; the name of the court and county in which the action is brought, and the names

of the parties to the action.

Complaint.

What com

Second. A statement of the facts constituting the plaint must

cause of action, in ordinary and concise language.

Third. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated.

SEC. 84. The plaintiff may unite several causes of action in same complaint when they arise out of:

First. Contracts, express or implied.

Second. Claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same, and for an injunction to stay waste or injury thereto. Third. Claims to recover specific personal property, with or without damages, for the withholding thereof.

Fourth. Claims against a trustee by virtue of a contract, or by operation of law.

Fifth. Injuries to character.
Sixth. Injuries to person.

Seventh. Injuries to property; but the causes of action so united shall all belong to only one of these classes, and shall affect all the parties to the action, and not require different places of trial, and shall be separately stated: Provided, however, That an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to person.

CHAPTER III.

SEC. 85. The defendant may demur to the complaint within the time required in summons to answer, when it appears upon the face thereof, either:

contain.

Causes of action that may

be joined.

When defendant may demur.

Demurrer must specify grounds of objection.

First. That the court has no jurisdiction of the person of the defendant or the subject of the action; or, Second. That the plaintiff has no legal capacity to

sue; or,

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

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

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

Sixth. That the complaint does not state facts sufficient to constitute a cause of action; or,

Seventh. That the complaint is ambiguous, unintelligible, or uncertain.

The demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken; unless it do so, it may be disregarded.

The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue, or may demur and answer Defendant at the same time: Provided, That a demurrer and answer shall in no case be filed at the same time to the same cause of action; but demurrers must be disposed of before any other pleadings to the same cause of action shall be filed.

may demur and answer.

Amended

If the complaint be amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments shall be served upon every defendcomplaint, ant to be affected thereby, or upon his attorney, if he has appeared by attorney. The defendant shall answer in such time as may be ordered by the court, and judgment by default may be entered upon failure to answer, as in other cases.

how served.

SEC. 86. When any of the matters enumerated in When objec- section 85 do not appear upon the face of the complaint the objection may be taken by answer. If no such objec

tions taken by

answer.

tion 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 constitue a cause of action.

CHAPTER IV.-The Answer.

SEC. 87. The answer of the defendant shall contain: First. A specific denial of the material allegations of the complaint controverted by the defendant.

Second. A statement of any new matter constituting a defense or counter claim.

If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively or according to the information and belief of the defendant.

SEC. 88. The counter claim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between whom a several judgment might be had in the action, arising out of one of the following causes of action:

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

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

SEC. 89. If the defendant omit to set up a counter claim in the cases mentioned in the first sub-division of the last section, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor.

When cross demands have existed between persons under such circumstances that if one had brought an action against the other a counter claim could have been set up, neither shall be deprived of the benefit thereof by the assignment or death of the other, but the two demands shall be deemed compensated so far as they equal each other.

Objections, waived.

when deemed

Answer, what to contain.

Counter

claims.

When de

fendant is

barred if he

fail to set up

counter claim

Cross

demands.

de

The defendant may set forth, by answer, as many fenses and counter claims as he may have; they shall Several de- each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished.

fenses may be interposed.

Demurrer to answer.

Causes for demurrer to answer.

When answer

contains new

CHAPTER V.

SEC. 90. The plaintiff may, within the same length of time after service of the answer as the defendant is allowed to answer after service of summons, demur to the answer of the defendant, or to one or more of the several defenses or counter claims set up in the answer.

SEC. 91. The demurrer may be taken upon one or more of the following grounds:

First. That several causes of counter claim have been improperly joined.

Second. That the answer does not state facts sufficient to constitute a defense or counter claim. Third. That the answer is ambiguous, unintelligible, or uncertain.

SEC. 92.

When the answer contains new matter the plaintiff may, within ten days from the date of filing such answer, reply thereto, and upon the overruling of tiff may reply. a demurrer to an answer, the court may allow the plaintiff to file a reply upon payment of costs caused by such demurrer.

matter plain

Pleadings subscribed.

CHAPTER VI.

SEC. 93. Every pleading must be subscribed by the party or his attorney.

SEC. 94. All complaints, answers, and replications shall be verified as provided in this section, except that when an admission of the truth of the allegation might subject the party to a prosecution for felony or misdemeanor, or when the action is by the district attorney, in behalf of the territory or county, the verification may be omitted. The affidavit of verification shall state that the facts stated in the pleading are true to the knowledge