Page images
PDF
EPUB
[ocr errors][merged small][ocr errors][merged small]

in five days, if the summons be served in the city and county, township or city, in which the action is brought; within ten days if served out of the township or city, but in the county in which the action is brought; and within twenty days if served elsewhere.

On whom summons to be served in Justice-Court actions : see rule for service in Superior Courts.

Rule in Superior Court applicable to Justices' Courts in service of summons by publication.

In Justice-Court actions the summons cannot be served out of the county of Justice before whom the action is brought, except when the action is brought upon a joint contract or obligation of two or more persons who reside in different counties, and the summons has been served upon the defendant resident of the county, in which case the summons may be served upon the other defendants out of the county; and except, also, when an action is brought against a party who has contracted to perform an obligation at a particular place, and resides in a different county, in which case summons may be served in the county where he resides; and except, also, where an action is brought for injury to person or property and the defendant resides in a different county, in which case summons may be served in the county where the defendant resides.

The Justice may, within a year from the date of filing the complaint, issue as many alias summonses as may be demanded by the plaintiff.

The summons in a Justice-Court action may be served by a Sheriff or Constable of any of the counties of this State, or by any male resident over the age of twenty-one years, not a party to the suit, and within the county where the action is brought, or it may be served by publication. When a summons is issued by a Justice of the Peace for service out of the county in which it was issued, the summons shall have attached to it a certificate, under seal by the County Clerk of such county, to the effect that the person issuing the same was an acting Justice of the Peace at the date of the summons.

[ocr errors][merged small][merged small][ocr errors][ocr errors][merged small]

CHAPTER VI.

FORM OF CIVIL ACTIONS-PLEADINGS.

There is in this State but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs.

In such action the party complaining is known as the plaintiff, and the adverse party as the defendant.

[ocr errors][ocr errors]

Pleadings.
Pleadings are the formal allegations by the parties of their
respective claims and defenses, for the judgment of the Court.

The only pleadings allowed on the part of the plaintiff are-
1. The complaint.
2. The demiurrer to the answer.
3. Demurrer and answer to a cross-complaint.
Those allowed on the part of defendant are
1. The demurrer to the complaint.
2. The answer.
3. Cross-complaint.
A demurrer raises an issue of law.
An answer raises an issue of fact.
An issue of law is tried by the Court.

An issue of fact is tried by a jury, unless a jury trial is waived.

The complaint must contain a concise statement, in writing, of the facts constituting the cause of action.

In the Justice Court a copy of the account, note, bill, bond, or instrument upon which the action is based, is sufficient.

The plaintiff may unite several causes of action in the same complaint where they all arise out of

1. Contracts, express or implied.

2. 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.

[ocr errors][ocr errors]

3. Claims to recover specific personal property, with or without damages for the withholding thereof.

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

5. Injuries to character.
6. Injuries to person.
7. Injuries to property.

The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated.

The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon

the face thereof, either

1. That the Court has no jurisdiction of the person of the defendant, or the subject of the action; or,

2. That the plaintiff has not legal capacity to sue; or,

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

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

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

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

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

Unless the demurrer distinctly specify the grounds upon which any of the objections to the complaint are taken, it may be disregarded.

The defendant may demur and answer at the same time.
The answer of the defendant shall contain

1. A general or specific denial of the material allegations of the complaint controverted by the defendant.

2. 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 pos

[ocr errors][ocr errors][ocr errors][ocr errors]

itively, or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufficient, but only puts in issue the material allegations of the complaint.

The counter-claim above mentioned must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action :

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

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

If the defendant omit to set up a counter-claim arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, 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, the two demands shall be deemed compensated so far as they equal each other, and neither can be deprived of the benetit thereof by the assignment or death of the other.

The plaintiff may, within the same length of time after the 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. The demurrer may be taken on one or more of the following grounds:

1. That several causes of counter-claims have been improperly joined

2. That the answer does not state facts sufficient to constitute a defense or counter-claim.

3. That the answer is ambiguous, unintelligible or uncertain.

It is not necessary for a party to set forth in a pleading the items of an account therein alleged; but he must deliver to the adverse party, within five days after a demand thereof, in writing, a copy of the account, or be precluded from giving evidence thereof.

Pleadings may be amended.

[merged small][ocr errors][ocr errors][merged small]

Verification of Pleadings. Every pleading must be subscribed by the party or his attorney; and when the complaint is verified the answer must be verified, unless an admission of the truth of the complaint might subject the party to a criminal prosecution; or unless an officer of the State, in his official capacity, is defendant. In all cases of the verification of a pleading, the affidavit of the party must state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters that he believes it to be true; and where a pleading is verified it must be by the affidavit of a party, unless the parties are absent from the county where the attorney resides, or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he must set forth in the affidavit the reason why it is not made by one of the parties. When a corporation is a party, the verification can be made by an officer thereof.

Provisions in Justices' Courts.

Pleadings in Justices' Courts are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended.

May-except the complaint—be oral or in writing.

« PreviousContinue »