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situated.

1849.

TITLE IV.
Of the place of trial of Civil Actions.
SECTION 123. Certain actions to be tried where the subject or some part

thereof is situated.
124. Other actions, where the cause or some part thereof arose.
125. Other actions, according to the residence of the parties.
126. Action may be tried in any county unless defendant demand

trial in proper county. § 123. (Sec. 103.) Actions for the following causes, Certain acmust be tried in the county in which the subject of the tried where

subject or action or some part thereof is situated, subject to the pow-thereof is er of the court to change the place of trial, in the cases

Amended provided by statute.

1. For the recovery of real property or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property :

2. For the partition of real property :
3. For the foreclosure of a mortgage of real property :

4. For the recovery of personal property, distrained for any cause.

For forms in partition suits, see 2 Barb. Chane. Prac. 698.

The proper county is where the mortgaged premises are situated, although the money may have been loaned and the mortgage papers executed in an. other county. Miller agt. Hull and wife, 3 How. 325; see Mairs vs. Remsen and others, 3 Code Rep. 138.

$ 124. [Sec. 103.] Actions for the following causes, Other acmust be tried in the county where the cause or some where part thereof arose, subject to the like power of the court, some part to change the place of trial in the cases provided by statute :

1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence committed on a lake, river, or other stream of water șituated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed : [NOTES.]

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Amendod 1849.

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2. «Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who by his command or in his aid, shall do any thing touching the duties of such officer.

a This applies only to affirmative acts, and not to mere omissions or neglect of official duty. Elliot vs. Cronk's administrators, 13 Wend. 35;

Hopkins vs. Haywood, id. 265. Other ac- § 125. (Sec. 104.) In all other cases, the action shall be tions, according to residence tried in the county in which the parties or any of them shall of the par

reside at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute.

Motion to change cannot be made before the issues in the cause are settled. Hartman and others agt. Spencer, 5 How. 135; Mixer vs. Kuhn, 4 How. 409; Lynch and wife agt. Mosher, id. 86; Contra, Myers vs. Feeter, 4 How. 240; Schenck agt. McKie, 4 How. 246.

As to what the moving papers should contain, see Lynch and wife agt. Mosher, 4 How. 86. See also, Beardsley vs. Dickerson, 4 How. 81.

Where the place of trial is changed for the convenience of witnesses, it should be to the county where the witnesses reside, although the court house in a neighboring county is nearer their residence. The People &c. agt. Wright, 5 How. 23.

An order to change the place of trial does not change the venue under the code of 1848 and 1849. Gould and others agt. Chapin and others, 4 How. 185.

See Supreme Court Rules 47, 48. Action may $126. (Sec. 105. If the county designated for that purany county, pose in the complaint, be not the proper county, the action

may, notwithstanding, be tried therein, unless the defendant, perlinurg- before the time for answering expire, demand, in writing, Amended that the trial be had in the proper county, and the place of

trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section.

The court may change the place of trial in the following cases

be tried in

unless de fendant demand

1851.

1. When the county designated for that purpose in the complaint is not the proper county :

2. When there is reason to believe that an impartial trial can not be had therein :

3. When the convenience of witnesses and the ends of justice would be promoted by the change.

When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties, in writing duly filed, or order of the court, and the papers shall be filed or transferred accordingly.

The venue is to be fixed irrespective of convenience of witnesses. A change of the place of trial for the convenience of witnesses is properly made when the venue has been fixed in the proper county. Moore agt. Gardner, 5 How. 243.

To change the place of trial, application must be made to the court; a de. mand in writing, that the trial be had in the proper county, does not change it. Hasbrouck vs. McAdam, 4 How. 342.

The court could not order an issue of law to be tried out of the county specified in the complaint, previous to amended code of 1851. Gould and others agt. Chapin and others, 4 How. 185.

TITLE V.
Of the manner of commencing Civil Actions.
SECTION 127. Actions how commenced.

128. Summons, requisites.of.
129. Notice to be inserted in certain actions.
130. Complaint need not be served with summons. In such case

what to be stated in summons and proceedings thereon.
131. Defendant unreasonably defending, when to pay costs-
132. Notice of pendency of action affecting title to real property.
133. Summons, by whom served.
134. Summons, how served and returned.
135. Publication when defendant cannot be found.
136. Proceedings when there are several defendants, and part

only served.
137. When service deemed made in case of publication.
138. Service of summons how proved.

139. When jurisdiction of action acquired. § 127. [Sec. 106.] Civil actions in the courts of record of Actons, this state, shall be commenced by the service of a sum- meneed. mons.

Summons requisites of.

Notice to

actions. Amended 1849.

$ 128. [Sec. 107.] The summons shall be subscribed by the plaintiff, or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service.

A summons issued without stating the court in which the action is brought is defective. Dix agt. Palmer and Schoolcraft, 5 How. 233; James and others agt. Kirkpatrick, id. 241,

A notice of appearance by the defendant, waives the irregularity. Dix agt. Palmer and Schoolcraft, 5 How. 233.

So too if complaint is served with the summons. Walker agt. Hubbard et al., 4 How. 154.

§ 129. [Sec. 108.] The plaintiff shall also insert in the be inserted in certain summons a notice, in substance as follows:

1. In an action, arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint, in twenty days after the service of the summons.

2. In other actions, that if the defendant shall fail to answer the complaint, within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint.

An action for a breach of promise of marriage, is within the first subdi. vision of this section. Williams agt. Miller, 4 How. 94; Leopold vs. Poppenheimer, 1 Code Rep. 39. See Supreme Court Rule, 91.

$ 130. [Sec. 109.] A copy of the complaint need not be Complaint need not be served with the summons. In such case, the summons must

state where the complaint is or will be filed; and if the defendwhat to be ant, within twenty days thereafter, causes notice of appearance

to be given, and in person, or by attorney, demands in writing ceedings thereon. a copy of the complaint, specifying a place within the state Amended, where it may be served, a copy thereof must, within twenty days

.

with summons. In such case

summons, and pro

to pay

costs.

Amended 1851.

thereafter, be served accordingly, and after such service, the defendant has twenty days to answer, but only one copy need be served on the same attorney.

See Colvin agt. Brayden, 5 How. 124; Munson and Sill agt. Willard, 5 How, 263; Eccles vs. Debeand, 2 Code Rep. 144.

If not furnished, defendant may move for judgment. Littlefield agt. Murin, 4 How. 306.

$ 131. [Sec. 110.] In the case of a defendant against whom Defendant - no personal claim is made, the plaintiff may deliver to such de- bly defend

ing, when fendant with the summons a notice subscribed by the plaintif or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific real or personal property, and that no personal claim is made against such defendant, in which case no copy of the complaint need be served on such defendant unless within the time for answering, he shall, in writing, demand the same. If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff. § 132. [Sec. 111.] In an action affecting the title to real Notice of

pendency property, the plaintiff at the time of filing the complaint, or

affecting at any time afterwards, may file with the clerk of each county property, al in which the property is situated a notice of the pendency of the

1849, 1851 action containing the names of the parties, the object of the action and a description of the property in that county affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed.twenty days before judgment, and must contain the date of the mortgage, the parties thereto and the time and place of recording the same. From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby. See Supreme Court Rules 49, 50, 51, 52, 53, 54, 55.

$ 133. [Sec. 112.) The summons may be served by the Summons, sheriff of the county where the defendant may be found, verved. or by any other person not a party to the action. The

of action

Amended

by whom

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