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Summons requisites of.

2

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

a copy of the complaint, specifying a place within the state Amended, where it may be served, a copy thereof must, within twenty days

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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 defendfendant with the summons a notice subscribed by the plaintiff 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 property, the plaintiff at the time of filing the complaint, or at any time afterwards, may file with the clerk of each county property, in which the property is situated a notice of the pendency of the action containing the names of the parties, the object of the action 1849, 1951 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, or by any other person not a party to the action. The

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Summons, how served and returned. Amended

service shall be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons, may,at his option, by an endorsement on the summons, fix a time for the service thereof, and the service shall then be made accordingly.

§ 134. [Sec. 113.] The summons shall be served by deliv

ering a copy thereof as follows : 1849, 1851.

1. If the suit be against a corporation, to the president of other head of the corporation, secretary, cashier, treasurer, director or managing agent thereof; but such service can be made in respect to a foreign corporation only, when it hus property within this State, or the cause of action arose therein.

2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there be none within the State then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.

3. aIf against a person judicially declared to be of unsound mind or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee has been appointed, to such committee and to the defendant personally.

4. bIn all other cases to the defendant personally. a The managing agent served upon must be one whose agency extends to all the transactions of the corporation. Brewster agt. The Michigan Central Railroad Company, 5 How. 183.

a And such a suit is against the property of the company only, (if a foreign corporation) such of it as is within this state. Hulbert vs. The Hope Ins. Co., 4 How. 275; Brewster agt. The Michigan Central R. R. Co., 5 How. 183.

b Application must be made to the court before service, under the 3d subdivision of this section. Soverhill agt. Dickson, 5 How. 209. See also In the matter of Heller, 3 Paige 199; Clarke vs. Dunham, 4 Denio, 262; Sternbergh vs. Schoolcraft, 2 Barb. 153; Matter of Hopper, a lunatic, 5 Paige 489.

Papers served should be left with defendant. Beekman vs. Cutler et al., 2 Code Rep. 51,

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1649, 1851.

$ 135. [Sec. 114.] Where the person, on whom the service of Publication the summons is to be made, cannot, after due diligence, be found tendant within the State, and that fact appears by affiduvit to the satisfac-found. tion of the court or a judge thereof, or of the county judge of the Amended county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant, in respect 10 whom the service is to be made, or that he is a proper party to an action relating to real property in this state, such - court or judge muy grant an order that the service be made by the publication of a summons in either of the following cases:

1. Where the defendant is a foreign corporation, has pro- . perty within the State, or the cause of action arose therein;

2. Where the defendant, being a resident of this State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent;

3. Where he is not a resident of this State, but has property therein, and the action arises on contract, and the court has jurisdiction of the subject of the action;

4. Where the subject of the action is real or personal property in this State, and the defendant has, or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein;

5. Where the action is for divorce, in the cases prescribed by law;

The order must direct the publication to be made in two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge must also direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him. When publication

is ordered, personal service of a copy of the summons and complaint out of the State is equivalent to publication and deposit in the post office.

The defendant against whom publication is ordered or his representatives, on application and sufficient cause shown, at any time before judgment, must be allowed to defend the action; and except in an action for divorce, the defendant, against whom publication is ordered, or his representatives, may in like manner, upon good cause shewn, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition on such terms as may be just; and if the defence be successful, and the judgment, or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. And in all cases where publication is made, the complaint must be first filed, and the summons, as published, must state the time and place of such filing.

The facts of absence and property within the state must appear positive. ly, and not on information and belief. Vernam agt. Holbrook, 5 How. 3; Evertson agt. Thomas, id. 45; Rawdon vs. Corbin, 3 How. 416; Van Rens. selaer agt. Dunbar, 4 How. 151. Complaint need not be published, Anon. 3 How. 293.

$ 136. [Sec. 115.] Where the action is against two or more ings whero

defendants, and the summons is served on one or more, but fendants, not on all of them, the plaintiff may proceed as follows:

1. If the action be against defendants jointly indebted upon Amended contract, he may proceed against the defendant served, unless 1849, 1861. the court otherwise direct, and if he recover judgment, it may

be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants served; or,

2. If the action be against defendants severally liable, he

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