69.a-Actions in which the judge is interested. : [Acts of 1870-'71, Chapter 20, Section 1.] Upon the application of any party plaintiff or defendant, it shall be the duty of the Judges of the Superior Courts in this State, in their respective judicial districts, to order the transfer and removal of any suit, action or cause pending in the courts of their said districts, in which such Judge shall have been, at any time, interested as party, or employed or otherwise engaged as counsel, to some county in an adjoining judicial district, to be agreed upon by the parties to such suit, action or cause, for trial: Provided, that, if the parties cannot agree upon a county to which such suit, action or cause may be transferred or removed, the Judge of the Court shall order the transfer and removal of such suit, action or cause, to some county adjoining, and nearest to his judicial district: Provided further, that if the Judge be interested as a party in any such suit, action or causé, he shall, upon application of any other party to the suit, order the transfer and removal of such suit, action or cause, to some county in an adjoining district, where the term of the court will not interfere with the judicial duties of the Judge making such order. very proper that the trial should be had in that county unless there be some valid objection to such course. The third provision is inclusive of the former practice. The promotion of public justice evidently extends, not only to the protection of the rights of a party who may conceive himself unlikely to obtain a fair trial, but also, very many other considerations-such as the crowded state of the dockets in one county and the reverse in another. This section gives to the Judge power, on an application of a party, of the witnesses or of his own motion, when the facts appear, to change the place of trial, not as a matter of right to the parties but in his discretion as having due regard to public justice and public right. This section seems to have almost entirely escaped the attention of the bar. During six years upon the bench of the seventh district, I never heard a single application based upon it, and am now unable to find that the Supreme Court has ever considered it in contrast with the former practice. So far as I have observed removals have hitherto been governed solely by the practice under sections 115, 116, Chapter 31, Revised Code, except in some few cases where they have been brought to the wrong county. SEC, 70. TITLE VII.a OF THE MANNER OF COMMENCINC CIVIL ACTIONS. Manner of commencing civil |SEC. 81. 71. Summons; by whom issued, &c. 72. Power to sue as a pauper; 73. Form of the summons. 74. What summons to contain. 77. Plaintiff failing to file com- 78. Plaintiff failing to file com- 79. Time of filing pleadings may 80. Plaintiff shall name an at- 82. Notice of no personal claim. mons. 82.a Personal service shall be by reading summons to the defendant. 82.b Service upon corporations. 83. Service by publication; form of summons. 84. Manner and effect of publication. 84a Publication of notice instead of summons. 85. Defendant allowed to defend Joint and several Debtors- 87. 88. 89. When service complete. 90. Jurisdiction-Appearance-- 90.a Ex parte proceedings 70.-Manner of commencing civil actions. in Civil actions in the Superior Courts of this State shall be commenced by the issuing of a summons. An order granting an injunction and directing summons to issue is irregular, since the order cannot be applied for until the action is instituted by the issue of a summons. Smith v. Joyner, 63—573; McArthur . McEachin, 64-72. The court will not notice such irregularity, however, unless objection is made by the defendant before answering. Heilig v. Stokes, 63-612. The proper method of enforcing judgments nisi, is by an action or by a special proceeding commenced by summons. See also § 263 post. Thompson v. Berry, 64–79. 71.-By whom issued, &c. The summons shall be issued by a Clerk of any Superior Court at the request of the plaintiff, but before issuing it, a The legislation in regard to the subject-matter of this title, since the adoption of the Code, has been of such a peculiar character that it is impossible to represent it fairly by striking out and inserting. The Acts of 1868-'69, Chapter 76, and 1870-'71, Chapter 42, known as "Acts suspending the Code," affected chiefly the provisions of this title, but were not broad enough to operate as a repeal of the different sections modified by it. Besides, they were confined to civil actions, as defined by the Code, and left all the provisions of this title in force as to special proceedings, to which they were specifically made applicable by Section 6 of the Act of 1868-69, Chapter 93. the clerk shall require of the plaintiff, either to give a bond, with sufficient security, in the sum of two hundred dollars, with the condition that the same shall be void if the plaintiff shall pay the defendant all such costs as the defendant shall recover of him in the action; or to deposit a like sum with him as a security to the defendant for such costs, and in case of such deposit he shall give to the plaintiff and to the defendant a certificate to that effect; or to file with him a written authority from some Judge or Clerk of a Superior Court authorizing the plaintiff to sue as a pauper. (See 75b post, Acts of 1868-69, Chapter 76, Section 2, and Acts of 1870-'71, Chapter 42, Section 2, amending this section.) By the Act of 1868-69, Chapter 76, the summons must be issued by the Clerk and made returnable in term time. McArthur v. McEachin, 46-72. 72.-Leave to sue as a pauper. [Acts of 1868-169, Chapter 96, Sections 1 and 3.] Any Judge, Justice of the Peace, or Clerk of the Superior Court, may authorize any person to sue as a pauper in their respective courts, when he shall prove by one or more witnesses that he has a good cause of action, and shall make affidavit that he is unable to comply with the provisions of the last section. Whenever any person shall sue as a pauper, no officer shall require of him any fee, and he shall recover no costs. Again, Chapter 241 of the Acts of 1876-77, instead of specifically abrogating or distinctly amending the sections providing for service by publication, simply strikes out a part of one sub-division and contents itself afterwards by referring to the existing law and repealing or modifying simply by implication. It became necessary, therefore, to show the effect of this legislation, that the original sections should be published and then the subsequent legislation upon the same topics. The statutes affecting these provisions have been introduced immediately after the sections most clearly affected by them. A consideration of the whole is necessary to a clear apprehension of the law, as it now exists in regard to the issue of summons. When the amendments have been specifically made of distinct sections, or when the intendment is clear and unmistakable, it has been incorporated with the text and the act amending is simply referred to by its title. The object has been to lay before the professional reader a full compend of the law upon the subject, as it stands at this time. Notice to adverse party not required. Deal v. Palmer, 68-215. A non-resident may sue as a pauper in the courts of this State. Porter v. Jones, 68-320. The certificate of counsel is sufficient proof of a good cause of action." Miazza v. Calloway, 74-31. The applicant may prove his cause of action by his own oath. Sumner v. Candler, 74-265. Either the Judge or the Clerk of a Superior Court may grant leave to sue as a pauper therein; the Clerk may grant such leave in the Probate Court and a Justice of the Peace in his own court. Rowark v. Gaston, 67-291. 72.a-The court may assign counsel. [Acts, 1868-69, Chapter 96, Section 1.] The court to which such writ (summons) is returnable, may, in its discretion, assign to the person suing as a pauper learned counsel, who shall prosecute his suit. § 73.—Form of the summons. The summons shall run in the name of the State, be signed by the clerk of a Superior Court, under the seal of his court, and be directed to the sheriff of the county in which the defendant resides or may be found, or in case such sheriff be a party to, or interested in, the action, it may be directed to the coroner of that county, or to the sheriff of any adjoining county. It shall command the officer to summon the defendant to appear at the office of the Clerk of the Superior Court for some certain county, within a certain number of days after the service, exclusive of the day of service, to answer the complaint of the plaintiff. It shall be dated on the day of its issue. The defendant to appear at the office of the Clerk of the Superior Court. Smith v. McIlwaine, 63-95; Johnson v. Judd, 63-498. Summons not void if the time limited for defendant's appearance is less than twenty days. Guion v. Melvin, 69–242. Summons against the sheriff to be directed to the coroner or the sheriff of an adjoining county. Wittowski v. Warren, 69-38. It is error to dismiss a complaint when the defendants are summoned to answer the complaint of A and B alone, and as individuals, and the complaint filed is that of (1) A and B and others, or, (2) A and B as stockholders, trustees, agents or executors; or, (3) When the summons is for relief and the complaint shows an action for money ouly, and demands a specific sum. Wilson & Shober v. Moore, 72-558. Effect of Acts of 1868-'69, Chapter 76, Section 2, known as the Act suspending the Code of Civil Procedure, in making summons in civil actions returnable to the term of the court discussed. McAdoo . Benbow, 63–461. Summons returnable at a day specified, before the clerk, since the Act of 1868-69, ch. 76, is not void but merely irregular. Woody v. Jordan, 69-189. 73.a-Summons under Act suspending the Code. [Acts of 1868-69, Chapter 76, Section 2; Acts of 1870-'71, Chapter 42, Section 2] The summons (in civil actions) shall run in the name of the State, be signed by the clerk of the Superior Court, having jurisdiction to try the action and under the seal of the court, and shall be directed to the Sheriff of the county in which the defendant resides, or may be found. It shall be returnable to the regular term of the Superior Court of the county where the plaintiffs, or one or more of them, or the defendants, reside; and shall command the sheriff or other proper officer, to summon the defendant to appear at the next ensuing term of the Superior Court and answer the complaint of the plaintiff, and shall be dated on the day of its issue. The officer to whom the summons is addressed, shall note on it the day of its delivery to him, and shall execute it at least ten days before the beginning of the term to which it shall be returnable, and shall return it on the first day of the term. 74.-What summons to contain. [Amended by Acts of 1876–77, Chapter 241, Section 1.] There shall also be inserted in the summons, a notice in substance as follows: Acts 1576-9 1. That if the defendant shall fail to answer the com-ch 24/ plaint within the time specified, the plaintiff will apply to the court for the relief demanded in the complaint. The clerk before whom the defendant shall be summoned to appear, shall be the Clerk of the Superior Court of the county in which it is provided in Title VI, that the action shall be tried. Graham v. Charlotte & Rutherford R. R. Co., 64-631; Rankin v. Allison, 64-673. Irregular process may be amended, but is no protection to the plaintiff or officer, for acts done under it before amendment. Woody ... Jordan, 69-189. 2. The number of days within which the defendant is summoned to appear, shall, in no case, be less than twenty, |