§ 83. Advantage of affidavit or bond should be taken on special appearance. If the complaint and affidavit, or either, is insufficient in form or substance, the defendant should, upon a special appearance, move to quash the writ; and if unsuccessful, should reserve the point by the proper exception, and traverse the allegations of the complaint and affidavit; and if the plaintiff fail to sustain the allegations requisite to authorize the proceeding, it will be dismissed, and if the proper objection is taken, the main action must fail also, as the claim is not due when the suit is brought.2

1 1 Ramsey v. Foy, 10 Ind. 493

9 Ante, ch. V, § 26.

5. Process cannot run to a term beyond the one next subsequent to the issuance.

6. Calling the docket and taking defaults.

7.

No personal judgment can be rendered by publication.

8.

When part of the defendants have been served and part not.

9. Defendant failing to answer, plaintiff may take judgment as upon nihil dicit.

10. Appearance, special and general, defined.

11. Special appearance necessary to take advantage of defects in process, or

the like.

12. Motions which relate to matters occurring before appearance, and which are inconsistent with a full appearance, must be made on special appearance, or are waived.

13. The first step to be taken by the defendant in a defense-motion to quash process.

14. No man's rights can be divested without notice.

15. Provision curative of technical defects in process or service construed. 16. Special appearance having been entered and failed to accomplish its pur

pose, default may follow.

17. Transfer of cases to the Federal circuit court.

18. Objections to complaint by motion.

19. Withdrawal of appearance in full.

20. Considerations which determine whether the defendant should answer or

26. Proceedings upon overruling the demurrer to the complaint.

27. Where demurrer overruled, defendant should answer in certain cases.

28. Preparing and filing the answer.

29. Where the answer completes the issues, no reply necessary, but special

answer otherwise, rule for reply.

$30. Plaintiff may demur or reply to special answers or proceed by motion. 31. Considerations affecting the propriety of demurring to a bad answer or

pleading over.

32. Of the filing and argument of the demurrer to the answer

demurrer is sustained.

33. Course of the plaintiff when the demurrer to the answer is overruled. 34. Plaintiff may save his exception and reply when demurrer to answer over

ruled.

35. When the plaintiff should reply.

36. Requisites of the reply.

37. Unless there be a demurrer to the reply or some motion affecting it, the issue is complete with the filing of it.

38. Neglecting to demur does not waive insufficiency.

39. Demurrer to the reply-preparation, filing and argument of.

40. Steps to be taken by the plaintiff in case of sustaining a demurrer to the reply.

41. Reply, denial where special reply held bad on demurrer.

42. Demurrer not the proper mode of objecting to defective general denial, but motion.

43. Argumentative denial will be rejected on motion.

44. Plaintiff may let judgment go on demurrer to reply.

45. Reply held good or demurrer to it waived, issues complete. 46. When amendments to pleadings must be made.

§1. An issue of law defined. An issue of law is raised by motion or demurrer, intended to test the legal sufficiency of a pleading, in form or substance; and such demurrer or motion admitting the truth of the facts alleged in the pleading to which the objection is taken, submits to the court the question of law arising upon such demurrer or motion.1

§ 2. An issue of fact defined. An issue of fact arises where an affirmative allegation, made on the one side, is denied on the other. And to make up the issues, in common parlance, is to have any questions of law, which may be raised by the parties, by demurrer, or motion, determined, and thus conduct the pleadings to an issue of fact; this is always actually accomplished under the present system, excepting where the plaintiff replies affirmatively, in which case the remainder of the pleadings leading to a direct issue, by affirmation or denial, are, so to speak, carried on ore tenus, so that when the reply is filed, and a demurrer to it disposed of or waived, the issues are completed.3

12 R. S. (1876) 163, § 317.

Id. § 318.

Id. 164, § 320.

§3. The purpose of the present chapter stated. The purpose of this chapter shall be to note the progress of a cause, from the first appearance of the parties in court, to the determination of all the issues of law, and until one or more issues of fact are formed, so far as they can be by pleading, and the case is ready for a trial of the issues of fact by the jury, or the court acting as a jury by consent of the parties.

§4. When cause stands for trial. Where the summons has been served ten days before the first day of the term, or publication has been made thirty days, or where a complaint is filed before or after the commencement of the term, and where the day on which the case shall stand for trial is fixed by the plaintiff by indorsement thereon,1 the cause stands for trial on that day, providing the defendant has had ten days' notice by summons or by publication thirty days, and unless the defendant appear and take some steps to prevent the same, a default will be taken, and judgment will be rendered against him. In the computation of the ten days, or the thirty days, the same is made by the rule fixed by the code, which is but declaratory of the common law, which is to exclude the first day and include the last, unless the last day be Sunday, when it will be excluded. And in leap year, the twenty-eighth and twenty-ninth days of February are counted as other days, so that where Monday is the first day of the term, or the day set for trial by indorsement, the summons must be served as early as Friday of the second week preceding. And it is necessary, where the action is begun by publication, that there should be the first three weeks' publication before the commencement of the term of thirty days. Thus the first publication must be made fifty-one days before the term, or day of trial fixed by indorsement, excluding the first day of the publication and including the first day of the term or return day fixed by indorsement. To illustrate, let it be supposed that the first day of the term or return day by indorsement is the first day of September; in order to have a full publication, so that the case shall stand for trial at that term, the first publication should be as early as the nineteenth of July; while the last day on which

'Acts 1877, 105.

2 R. S. (1876) 311, § 787.

Helphenstine v. Vincennes National Bank, Ind. unreported.

service of summons will be in time for that term will be the twenty-second day of August.'

1

$5. Process cannot run to a term beyond the one next subse quent to the issuance. A suggestion which might well have been made elsewhere upon this subject is, that although when the summons is issued, or the first publication is made, it is already too late for service or publication to be made in time for the next term, still the summons must be returned to the next term, and the summons or the publication must cite the defendant to appear at the next term. And although the case will not stand for trial at that term, the process or notice will avail to compel an appearance or justify a default at the next succeeding term. This results from an old rule of the common law growing out of the service of process by arrest, and which still seems to be recognized, that process made returnable to a subsequent term, a term intervening between the issuing and return day of the process, is void. But under the amended act, service of process or publication, either in or out of term, may be made with reference to a time fixed by indorsement on the complaint, and the time so fixed may be any time when the court is in session, and hence the rule referred to is of little practical importance.

§ 6. Calling the docket and taking defaults. The court, on the second day of the term, calls the docket for issues and defaults. If there is no appearance by the defendant, and he has been served with summons in person or by copy in time, or by publication, in a case where publication is proper, the attorney for the plaintiff may have him called three times and defaulted; and having shown to the court evidence of service, or notice by publication, by exhibiting the return of the sheriff, or affidavit of publication, he is entitled to make his proof and have his damages assessed, and have judgment rendered upon the default. If the foundation of the plaintiff's action is a note, bill of exchange, or other instrument in writing, he has only to exhibit the same; or if the action be upon an account verified by the affidavit of the

1 Martin v. Hornell, 8 Ind. 501; Kor. Pr. 154; Shirley v. Hagar, 3 Blackf. topeter v. Wright, 15 id. 456. 225; Carey v. Butler, 11 Ind. 391.

2 Crabb v. Atwood, 10 Ind. 331.

3 Will v. Whitney, 15 id. 194; 1 Tidd

Acts 1877, 107.