Notice of motion on foregoing petition - Order appointing guardian Order nisi.

Wherefore, the plaintiff asks that some suitable and competent person be appointed guardian ad litem for said defendant, and be authorized and directed to appear and defend the action in his behalf, and for such other and further relief as may be just.

To

(Verification.)

(Signature.)

Notice of Motion on Foregoing Petition.

(Title of cause.)

Take notice that on a petition, a copy of which is hereunto annexed, and on the summons and complaint in this action, a motion will be made at a special term of this court to be held at

on the

day of

in the city of 18, at o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order appointing a guardian ad litem for the within-named infant in this action, and for such other and further relief as may be just.

(Date.)

Order Appointing Guardian.

(Title of cause.)

(Caption.)

(Signature.)

On reading and filing the petition of A. B., dated

for

the appointment of a guardian ad litem herein, for the defendant Y. Z., and proof of due service thereof, and on motion of

plaintiff's counsel:

ORDERED: That

be and hereby is appointed guardian ad litem of the infant defendant Y. Ž. in this action, and is authorized and directed to appear and defend the same, on his behalf, as such guardian.

If the application is made ex parte on the foregoing petition, the order may be in the following form:

Order Nisi.

(Title of cause.)

(At special term, etc.)

On reading and filing the petition of A. B., dated
the appointment of a
Z., and on motion of
ORDERED: That

for

guardian ad litem, for the defendant Y. , plaintiff's counsel: be appointed guardian ad litem of the defendant Y. Z., unless, within ten days after service of a copy of this order upon him, he procure a guardian ad litem to be appointed.

On proof of the service of the above order, and of the default of the defendant to procure the appointment of a guardian að litem, within the next ten days thereafter, the above order may be made absolute.

Petition for the appointment of a guardian for a non-resident infant defendant.

Order Absolute.

(Title of cause, etc.)

day of

On reading and filing the annexed proof of due service of the order of the 18, and of no application on the part of the defendant for the appointment of a guardian ad litem, and on motion of , plaintiff's counsel: ORDERED: That the said order of the made absolute, and that the said be and hereby is appointed guardian ad litem for the defendant Y. Z., and is authorized to appear and defend this suit for him as such.

day of

be

Petition for the Appointment of a Guardian for a non-resident Infant Defendant in Partition.

(Title of cause.) To the Supreme Court.

The petition of A. B., the plaintiff in this action, respectfully shows to the court:

I. That this action is now pending in this court.

II. That the action is brought for the partition of real estate situated in the county of and that the defendant Y. Z. is

a necessary or proper party thereto.

as

III. That the said defendant Y. Z. is an infant under the age of twenty-one years, and resides without the State, at the deponent is informed by and verily believes, and that there is no regular communication, by mail, with such place (or resides without this State, but the place of his residence is not known to the defendant, and his residence cannot, on due inquiry, be ascertained by the petitioner, although he has diligently made such inquiry, state how).

IV. That this action was commenced by the service of the summons upon (or, that an order for the service of a summons upon said infant by publication was made by this court on the day of , 18 ), and that the first publicaday of

tion of the same was made on the V. That no appearance by or on behalf of said infant, and no application for an appointment of a guardian ad litem by him, or on his behalf, has been made, to the best of this deponent's knowledge and belief.

Wherefore the plaintiff asks that some suitable and competent person be appointed guardian ad litem for said defendant, and be authorized and directed to appear and defend the action in his behalf, and for such other and further relief as may be just. (Verification.)

(Signature.)

(Title of cause.)

Order thereon.

(At a special term, etc.)

On reading and filing the petition of A. B., the plaintiff in the above-entitled cause, setting forth, among other things, that Y.

Leave to defend-Time to plead.

Z., one of the above-named defendants, is a non-resident infant, and that no guardian has been appointed for him in this action; on motion of G. K., plaintiff's attorney, ORDERED: That T. S. of be appointed guardian ad litem of said infant defendant for the purposes of this action, unless the said defendant, or some one in his behalf within twenty days after service of a copy of this order in the manner herein directed, procure a guardian ad litem to be appointed, and give notice thereof to the plaintiff's attorney.

It is further ordered, that this order be served on said infant, either by personal service on with whom said infant resides, or by depositing a copy thereof in the post-office at properly inclosed in an envelope, with postage prepaid, and directed to the said at his place of residence, to wit, the town of and that said guardian execute to the people of this State, and duly acknowledge and file a bond in the penalty of dollars, [to be fixed by the court] and with sureties, to be approved by a justice of this court, conditioned for the faithful discharge of the trust committed to such guardian, and to render a just and true account of his guardianship, in all courts and places when thereunto required.

Section 4. Leave to defend. It may be necessary, before serving an answer in an action, to obtain leave of the court to defend. Thus where a summons has been served by publication, if the defendant wishes to defend the action, he must first apply to the court for permission. Code, § 135. Upon a proper application before judgment, leave to defend will be granted as of course. So, where a wife is sued jointly with her husband, she may answer separately in certain cases, as where the husband's interest is adverse to hers; or where she disapproves of the intended defense; or where she lives separate from him, or where he is out of the jurisdiction of the court or an alien enemy. In either case, leave of the court must be first obtained. Newcomb v. Keteltus, 2 Code R. 152. If the defendant is too poor to conduct the defense, it may be proper to apply to the court for leave to defend, as a poor person; under the English Practice leave to defend in forma pauperis cannot be obtained in a legal action, although it may be in a suit in equity. This whole question will, however, be fully discussed in one connection under the head with leave to sue, ante, 206 to 212.

Section 5. Time to plead. As a rule, either party is allowed twenty days in which to serve a pleading, the time being computed from the date of the service of the pleading calling for such answer or reply. Code, §§ 143, 153. When the preceding

Notice of motion to enlarge time to plead - Affidavit by defendant.

pleading or demand has been served by mail, double time is allowed for the service of the subsequent pleading. Code, § 412. Where the defendant has been arrested under section 183 of the Code, the time to answer the complaint runs from the service of the order of arrest. Code, § 183.

Where an order granting the discovery of books or papers has been complied with or vacated, the party obtaining such order has the like time to prepare his complaint, answer, reply or demurrer, to which he was entitled at the making of the order. Rule 22, Supreme Court.

The time to plead may be extended by the written consent of the parties or their attorneys, or by an order of the court, or of a judge, or by a county judge. Code, § 405; Rule 16, Supreme Court. See also Rule 30, id.

Notice of a Motion to Enlarge the Time to Plead. (Title of cause.)

SIR: Please take notice, that, on the affidavit a copy of which is hereunto annexed, the undersigned will move the court, at a special term thereof to be held at

18, at

to answer herein

on the day of o'clock in the forenoon, to enlarge the time days, or for such other or further relief as

Affidavit (by defendant).

(Signature.)

Y. Z., being duly sworn, says:

I. That he is the defendant in the above-entitled action.

II. That he has fully and fairly stated the case in this action to R. S., his counsel therein, who resides in

and that he has

a good and substantial defense on the merits, to the action, as he is advised by his said counsel and verily believes.

III. (That, state excuse for requiring further time,) and that days further time is necessary therefor.

IV. That the complaint herein was served on the

18

and the time to answer expires on the

day of day of

, and no extension of such time has been had (or state

what extension of time has been had).

(Jurat.)

(Signature.)

Affidavit by defendant's attorney-Relief from default.

Affidavit (by defendant's Attorney).

(Title of cause.) (Venue.)

R. S., being duly sworn, says:

I. That he is the attorney for the defendant in the aboveentitled action, and resides in

II. That from the statement of the case in the action made to him by the defendant, deponent verily believes that the defendant has a good and substantial defense upon the merits, to the cause of action set forth in the complaint, or to some part thereof. III. That the defendant herein (was compelled to leave the city of where he resides, on business, immediately after the service upon him of the summons and complaint herein, and remained absent two weeks, and that since his return defendant has been unable, by reason of sickness, to instruct deponent concerning his answer in the cause), and that days further time

is necessary therefor.

IV. That the complaint herein was served on the 18, and the time to answer expires on the

day of day of

had if

, and that no extension of such time has been had by stipulation or order (or state what extension has been any).

V. That deponent makes this affidavit instead of the defendant herein (on account of the continued sickness of said defendant, who is thereby prevented from attending before an officer to make this affidavit). (Jurat.)

Order enlarging Time to Answer. (Title of cause.)

On reading and filing the annexed affidavit of ORDERED: That the said defendant have time to answer the complaint herein. (Date.)

(Signature.)

, it is days additional

(Signature of Judge.)

Section 6. Relief from default. Whenever the defendant by mistake, surprise, inadvertence, or excusable neglect, has suffered a judgment to be entered against him, he should move the court for an order that the judgment be stayed or vacated, and that he be allowed to come in and defend. This motion must be made within a year from the notice of judgment, on the usual notice to the adverse party, or on an order to show cause. Code, § 174. The moving papers should set forth the facts relied on to excuse the default, and be accompanied by an affidavit of merits unless one has once been previously filed and served in the cause. Rules 29 and 30, Supreme Court.