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III. That, after serving said B., deponent ascertained that B. had conveyed his interest to E. G. W. in
, 19 , in trust for himself and others, and deponent has since learned that one C. E. F. pretends to have a grant of the fee, and deponent [is advised and83] believes that it is necessary to make and his wife defendants herein.
IV. [If application is ex parte, add] That no defendant has appeared herein,84 and that previous application has been made herein [except, etc.85]. [Jurat.]
[Signature.] [Order may be adapted from Form No. 433.]
oplemental sured as to the cand that th
FORM No. 435. Order giving leave to issue supplemental summons, with leave also to amend
summons and complaint.86 [Caption and recitals. See Form No. 433 (above.).]
ORDERED, that J. L. be brought in as a party defendant to this action, and that a supplemental summons issue direct to said J. L., and that this action be discontinued as to the defendant L. P. A., without costs to said defendant or to plaintiff, and that the name of said L. P. A. be omitted from the title of said action in the amended summons and complaint and notice of pendency of action, and that the complaint and notice of pendency of action herein be amended by including as defendant in the title of said action the name of the said J. L., and that said complaint be also amended by striking out the words [quoting or indicating any clause to be struck out.87]. Enter. [Signature by initials of name and title of presiding
83 Appropriate if the affidavit is by the client.
84 Luckey v. Mockridge, 112 App. Div. 199.
85 See p. 116 of this volume, paragraph 84 and p. 171.
86 For other forms, see Chapter on PLEADING.
87 See paragraph 80 on p. 115.
FORM No. 436.
Supplemental Summons.88 [Name of the court; and, if in the Supreme Court, the name of
[Names of all the] plaintiffs,
against [Names of all the] defendants [including those to be brought in).
To [here name new defendant only, unless otherwise required, pp. 719, 720] above-named. [Or, To the defendants abore. named, except Y. Z.]
You are hereby summoned to answer the complaints [or, the complaint and the supplemental complaint — or, the amended and supplemental complaint] in this action, and to serve a copy of your answer on the plaintiff's attorney [or if he appear in person, on the plaintiff], within twenty days after the service of this summons, exclusive of the day of service; and, in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. [Date.]
[Signature and address of],
Attorney for plaintiff [or,
88 For notes on the requisites of supplemental summons, in common with the primary summons, see Form 365 of this volume. The mode of service is the same as in case of the primary summons.
89 Upon a supplementary bill in chancery, a subpoena is not required unless new parties are made. Shaw v. Bill, 95 U. S. 10
REMOVAL OF CAUSE BY PLAINTIFF. 1. Power of the court.
2. Practice. 1. Power of the court.] — The removal of a cause before trial from one court to another, authorized by several statutes (as distinguished from a mere change of venue), is not always confined to removal at the instance of a defendant. The plaintiff may often remove his own cause; and the fact that by bringing his action he selected the tribunal from which he seeks to remove it, does not bar him from removal if the statute be broad enough to apply, and a proper case is made.
2. Practice.] — The practice will be most conveniently seen by reference to the forms in the next chapter, and in Vol. II, Chap. XIV, Art. I, adapted to the more common case of removal at the instance of a defendant.
DISCONTINUANCE BEFORE DEFENDANT'S APPEARANCE. 1. Before any defendant has appeared.] — The plaintiff may enter an ex parte order in an action at law, discontinuing the action without costs, notwithstanding a provisional remedy has been granted and executed."
2. After appearance by some defendants.] — Plaintiff may discontinue as to the defendants who have not appeared, and he has a right to discontinue without costs as to them, unless some rights of the defendants who have appeared will be affected; in such case the court may protect the rights of those parties by re fusing a discontinuance except upon proper conditions."
Where plaintiff has joined various persons as defendants, some of whoin have not been served and have not appeared, the cause is not in a condition to be tried so long as they remain parties; in order to try and dispose of the case as against the defendants who have answered, it is necessary to bring in the other defendants named, or to discontinue as against them.93
90 Such discontinuance operates to vacate the attachment, and defendant is entitled to a formal order vacating it. Am. Audit Co. r. Indus. Fed., 87 App. Div. 275, 84 N. Y. Supp. 369. The defendant will be entitled to enforce the undertaking given on procuring the attachment. Straus r. Guilhou, so App. Div. 50, 80 N. Y. Supp. 180.
It is improper for the court, on defendant's application, to amend the order of discontinuance so as to permit the defendant to enter judgment dismissing the complaint. Straus v. Guilhou, supra.
The clerk can enter the order of discontinuance without any direction from the court or a judge thereof. Hotaling v. Schermerhorn, 28 Misc. 311, 59 N. Y. Supp. 48', afr'd 48 App. Div. 638.
91 Valentine v. muvers, 36 Hun, 201 (without notice to the defendant who has not appeared, and notwithstanding a pending motion by such defendant).
92 Chapman v. Wolf, 89 App. Div. 563, 85 N. Y. Supp. 638. 93 See Chapman v. Wolf, supra.
1. The right to appear. 1-A defendant named as such on the record, has a right to appear, whether he has been served or not, provided only the action has been actually commenced. 94
A defendant sued in a court of record may appear in person or by attorney.95
84 There are 'ome early authorities under the Code to the contrary, which are clearly unsound. It cannot be that a plaintiff has a right to use the process of the court to institute an action and keep it hanging over a defendant merely because he chooses to delay serving him after commencing the action as against others, or fastening a lien on the property of the defendant. The practice now is that stated in the text. Duer 1. Fox, 27 Misc, 676, 59 N. Y. Supp. 426; Higgins v. Rockwell, 2 Duer, 650; McLoughlin v. Bieber, 26 Misc. 143, 56 N. Y. Supp. 805, 29 Civ. Pro. 17.
85 The attorney who appears for a litigant in a court not of record acts as an attorney in fact. Beardsley v. Pope, 88 Hun, 560, 34 N. Y. Supp. 846 , McLear v. Reynolds, 76 App. Div. 267, 78. N. Y. Supp. 457; Cutting v. Jess. mer, 101 App. Div. 284, 91 N. Y. Supp. 658.