Statutory provisions as to process.-Each of the code states prescribes either the form or the substance of the summons and all processes upon which jurisdiction is founded. Space will not permit the correlation of these statutes, but it may be generally said that the above forms of summons are representative of the forms prescribed in most of the states covered by this work. In all instances, however, the statutory forms, where prescribed, should be used, and the statutory provisions carefully observed. Under the procedure in some states, the summons is issued upon a praecipe, or request in writing directed to the clerk for the issuance thereof. The Iowa code (§ 3514) provides that the plaintiff may give a notice to the defendant before complaint (or petition) is filed, to the following effect: "That on or before a certain day [naming it] a petition will be filed in the office of the clerk of the district court of the state of Iowa, in and for the county of , claiming of you the sum of $ as justly due the plaintiff on [here stating the nature of the obligation], and that unless you appear thereto and defend before noon of the second day of the term [naming it] of said court, which will commence on the day of at the courthouse in the county of state of Iowa, default will be entered against you and judgment [or decree] rendered thereon. "[Signature of the plaintiff or his attorney.]”

19

§ 470. CERTIFICATES, ORDERS, ETC.

FORM No. 1086-Sheriff's certificate of service of summons. (Endorsed or

I hereby certify, that I received the within summons on the

day of

of

19 and personally served the same on the

19 on

day

, being the defendant named in said. summons, by delivering to him, the said defendant, personally, in the county of a copy of said summons, and a copy of the complaint in the action therein mentioned, which was attached thereto, and by then and there exhibiting to defendant the within. original summons in said action.

[Date.]

Sheriff's fee, $

M. N., Sheriff.

O. P., Deputy Sheriff.

FORM No. 1087-Notice of motion to quash summons or its service. [Title of court and cause.]

day of

19,

at

Please take notice, that defendant, appearing for this and no other purpose, will move the court at the courtroom [department No. thereof, on the o'clock M., or as soon thereafter as counsel can be heard, to quash the summons in this action [or to set aside the alleged service of the summons in this action], and for an order quashing [or setting aside] said alleged

service, on the ground that said summons is defective [or on the ground that the service of the summons was not properly made]. Said motion will be based on the summons in the action [or on the summons and the evidence of the alleged service thereof, endorsed on, or attached to, said summons, and (if used) on affidavits, copies of which are attached to this notice and served herewith].

[Date.]

A. B., Attorney for defendant, for the purpose of said motion only.

FORM No. 1088-Order extending time to answer after decision on motion to quash.

(In Anderson v. Schloesser, 153 Cal. 219; 94 Pac. 885.) [Title of court and cause.]

The above-named defendant having made a special appearance in the above-entitled action for the purpose of moving the court to quash summons, it is ordered that he be and he is hereby granted ten days' time after decision on said motion within which to serve and file his demurrer or answer in said action.

Dated March 9, 1905.

F. A. Kelley, Judge of Superior Court.

FORM No. 1089-Affidavit as basis of order for service by publication.1

(In Bantley v. Finney, 43 Neb. 794; 62 N. W. 213.)

[Title of court and cause.]

State of Nebraska,

Lancaster County.

SS.

J. R. Webster, being first duly sworn, on his oath says: I am the attorney of record of Richard C. McWilliams, plaintiff in the aboveentitled cause. On the 19th day of July, 1882, said plaintiff filed a petition in the district court of Lancaster County against Gotlieb Bantley, the object and prayer of which is to enforce a specific performance of a written contract for the sale of certain premises described as the southeast quarter of section 24, township 10 north, of range 7 east, of sixth principal meridian, made and entered into

1 The affidavit in form No. 1089 is held to contain all the averments of fact necessary to authorize the plaintiff to make service upon the defendant by publication, and give the court jurisdiction of the defendant, if such service by publication should be made as provided by sections 79 and 80 of the Nebraska Code of Civil Procedure: Bantley v. Finney, 43 Neb. 794, 63 N. W. 213, 214.

by and between the said defendant, as vendor, by J. P. Walton, his agent duly authorized in writing, and said plaintiff, as vendee, on or about the 15th day of June, 1882, for sale of said premises, at the price of $2,400, exclusive of agent's commission, $800 payable in hand, $533 1/3 on or before two years, and two like sums on or before three and four years, respectively, with interest at the rate of seven per cent per annum, to be secured by mortgage on said premises; that said plaintiff is absent from the county of Lancaster, and affiant makes this affidavit in his behalf for that reason; that said defendant is a non-resident, and resides at Johnstown, in the state of Pennsylvania, and is absent from the state of Nebraska, and service of summons can not be made within the state on him; wherefore the plaintiff prays for service by publication.

[Jurat.]

§ 471. CITATIONS, ORDERS, ETC.

FORM No. 1090-Citation. (Common form.)

[Title of court and cause.]

The people of the state of

to

J. R. Webster.

greeting:

By order of this court, you are hereby cited and required to appear court, at the courtroom of department No.

before this

the day, then and there to [here state nature of matter concerning which appearance is required or testimony to be given].

FORM No. 1091-Order for citation to executor upon application by creditor.

[Title of court and cause.]

M. N., being a creditor of, and the person interested in, the estate of L. M., deceased, having this day presented to this court, and filed herein, his petition praying that X. Y., as executor of the last will of L. M., deceased, be required by the court to appear and render, for

the information of this court, an exhibit under oath showing the debts and liabilities of the estate of said L. M., deceased, and the assets and property belonging to said estate, and the condition. thereof, and of the matters and things necessary or proper for the purpose of showing the condition of the affairs of said estate; and this court, being satisfied that the facts alleged in said petition are true, and considering and deeming the showing made by said applicant and petitioner sufficient to justify this court in granting the prayer of said petition:

on

It is now hereby ordered and directed, that a citation be forthwith issued requiring and directing the said X. Y., as executor of the last will of L. M., deceased, to appear in this court in the courtroom of department thereof, at 19, then and there to render to this court, and on that day to file herein, an exhibit and statement under oath, showing and setting forth the following matters and things to wit: [Here state as to facts and reports to be presented.]

It is further hereby ordered, that a copy of this order, and of the citation aforesaid, be served upon said executor at least days before the date of said hearing.

[Date.]

S. T., Judge.

FORM No. 1092-Acknowledgment of service of citation. (Annexed to cita

tion.)

[Title of court and cause.]

Service of a copy of the within citation, and also of a copy of the order to show cause, pursuant to which said citation was issued, and of a copy of the petition mentioned in said citation, is hereby admitted this 29th day of June, 1899. [Signature of executor.]

FORM No. 1093-Citation to executor and surviving widow to show cause why family allowance should not be reduced.

[Title of court and cause.]

The people of the state of

.

to X. Y., as executor of the last

will of L. M., deceased, and to T. M., widow and surviving wife of said L. M., deceased, greeting:

You are hereby cited to be and appear in our

court of the

day of

19, at

day of

19 "

o'clock M. of that day, then and there to answer the petition of R. M., as trustee [or heir at law and devisee, etc.] under the last will of L. M., deceased, praying for a modification of the order herein made on the fixing a family allowance of $ to said T. M., and that the allowance heretofore made and directed to be paid out of the estate of said L. M., deceased, be, by order, modified and reduced in the following respect: [Here state.] A copy of said petition is herewith served upon you. And you are required to then and there show cause, if any you have, why the prayer of said petition should not be granted.

FORM No. 1094-Order sustaining demurrer to petition and discharging cita

tion.

[Title of court and cause.]

day of

The petition of M. N., a creditor, for a citation against T. M., widow of said L. M., deceased, to show cause why the family allowance under orders heretofore made should not be reduced, having been filed herein on the 19 and citation having been duly issued thereon and served on T. M., and she having made and filed herein her return or answer to said citation, and part of said answer being the demurrer to the said petition of said M. N., and the matter coming on regularly for hearing this day of 19 and the demurrer of said T. M. to said petition having been argued by counsel for the respective parties, was submitted to the court for decision; and the court being fully advised in the premises:

It is hereby ordered, that the said demurrer to said petition be and the same is hereby sustained, and the said T. M., is hereby discharged from said citation and said citation is hereby dismissed. [Date.] S. T., Judge.

Form of return endorsed on a summons in an action to recover balance due for manufacturing, furnishing, and erecting certain machinery for the reduction of ores: Colorado Iron-Works v. Sierra Grande Min. Co., 15 Colo. 499, 504, 25 Pac. 325, 22 Am. St. Rep. 433.