Proceed

ings where

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.

§ 136. Where the action is against two or more defendants, and the summons is served on one or more, but not on all of fendants, them, the plaintiff may proceed as follows:

there are

several de

and part

only served.

When service deem

1. If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless 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 may proceed against the defendants served in the same manner as if they were the only defendants;

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone.

§ 137. In the cases mentioned in section 135, the serd made in vice of the summons shall be deemed complete, at the expilication. ration of the time prescribed by the order for publication.

case of pub

Service of §138. Proof of the service of the summons, and of the com

summons,

Le pro-plaint or notice, if any, accompanying the same must be as

ved.

follows:

1. If served by the sheriff, his certificate thereof; or,

2. If by any other person, his affidavit thereof; or,

3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited; or,

4. The written admission of the defendant.

In case of service, otherwise than by publication, the certificate, affidavit or admission must state the time and place of the service.

§ 139. From the time of the service of the summons in a Wenjincivil action, or the allowance of a provisional remedy, the acquiren

. court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon

him.

risdiction of

TITLE VI.

Of the pleadings in civil actions.

CHAPTER I. The complaint.

II. The demurrer.
III. The answer.
IV. The reply.

V. General rules of pleading.
VI. Mistakes in pleading and amendments.

CHAPTER I.

Forms

inconsist.

this act

The complaint.
Section 140. Forms of pleadings inconsistent with this act abolished.

141. First pleading to be complaint.

142. Complaint, what to contain. $ 140. All the forms of pleading heretofore existing, pleading inconsistent with the provisions of this act, are abolished; ent with and hereafter, the forms of pleading in civil actions, in abolished. courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are modified as prescribed by this act.

First pleud§ 141. The first pleading on the part of the plaintiff, is

complaini, the complaint. 112. The complaint shall contain:

Complaini, 1. The title of the cause, specifying the name of the contain

ing to be

Defendant to demur or answer.

When the defendant

court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant;

2. A plain and concise statement of the facts constituting a cause of action without unnecessary repetition;

3. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

CHAPTER II.

The demurrer.

SECTION 143. Defendant to demur or answer.

144. When the defendant may demur.

145. Demurrer must specify grounds of objection to complaint. 146. How to proceed if complaint be amended.

147. Objection not appearing on complaint may be taken by an

swer.

148. Objection, when deemed waived.

§ 143. The only pleading on the part of the defendant, is either a demurrer or an answer. It must be served within twenty days after the service of the copy of the complaint.

§ 144. The defendant may demur to the complaint, when may de- it shall appear upon the face thereof, either:

mur.

Demurrer must speci

fy grounds of objection to

complaint.

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 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.

§ 145. The demurrer shall distinctly specify the grounds

of objection to the complaint. Unless it do so, it

may be

proceed complaint be urnended.

disregarded. It may be taken to the whole complaint, or to any of the alleged causes of action stated therein.

$ 146. If the complaint be amended, a copy thereof Flowe do must be served on the defendant, who must answer it within twenty days, or the plaintiff upon filing with the clerk on proof of the service, and of the defendant's ommission, may proceed to obtain judgment, as provided by section 246, but where an application to the court for judgment is necessary, eight days notice thereof must be given to the defendant. $147. When any of the matters enumerated in section Objection

ing on face 144 do not appear upon the face of the complaint, the ob- of com

plaint may jection may be taken by answer.

by answer. § 118. If no such objection be taken, either by demur- Objection, rer or answer, the defendant shall be deemed to have deemed waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.

not appear.

be taken

when

waived.

CHAPTER III.

The Answer.

Section 149. Answer what to contain.

150. May set forth as many grounds of defence as exist.
151. Demurrer as to some causes of action, and answer as to

others.
152. Sham defences to be stricken out.

what to

§ 149. The answer of the defendant must contain :

Answer, 1. A specific deniul of each material allegation of the com

contain. plaint controverted by the defendant, according to his knowledge, information or belief, or of any knowledge or information thereof sufficient to form a belief.

2. A plain and concise statement of any new matter constituting a defence or set-of' without unnecessary repetition.

$ 150. The defendant may set forth by answer, as many May set defences as he shall have. They shall each be separately many stated, and refer to the causes of action which they are in

as

Demurrer as to soine causes

tended to answer, in any manner by which they may be intelligibly distinguished.

§ 151. The defendant may demur to one or more of sevaction, and eral causes of action stated in the complaint, and answer as to oth- the residue.

$152. Sham and irrelevant answers and defences may be stricken out on motion and upon such terms as the court may in their discretion impose.

to answer

ers,

Sham de-
fence to be
stricken
out.

CHAPTER IV.

when to be

what to

The Reply.
SECTION 153. Reply, when to be put in, and what to contain.

154. When defendant may move for judgment upon an answer.

155. Demurrer to reply. Reply, § 153. When the answer contains new matter constituting put in, and

defence or set off-the plaintiff may, within twenty days, reply contain.

to such new matter, denying specifically each allegation controverted by him, according to his knowledge, information or belief, or any knowledge or information thereof sufficient to form a belief ; and he may allege, in a plain and concise manner without unnecessary repetition, any new matter, not inconsistent with the complaint, constituting a defence to such new matter in the answer ; or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof ; and the plaintiff may demur to one or more of several defences and set off-set up in the answer and reply to the residue.

$ 154. If the answer contain a statement of new matter

constituting a defence, and the plaintiff fail to reply or merit, upon demur thereto within the time prescribed by law, the de

fendant may move on a notice of not less than ten days for such judgment, as he is entitled to upon such statement, and if the case require it, a writ of inquiry of da

mages may be issued. Demurrer § 155. If a reply of the plaintiff to any defence set up

by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof.

When defendant may inove for judg

answer.

w reply.