« PreviousContinue »
with the certificate of the officer of its service, to the office of the clerk from which the summons issued.
SEC. 6. The summons shall be served by delivering a copy thereof, as follows:
1. If the suit be against a corporation, to the president or head of the corporation, secretary, cashier, or managing agent thereof.
2. If against a minor, to such minor personally, and also to his father, mother, or guardian, or, if there be none within this District, then to any person having the care and control of such minor, or with whom he resides, or in whose service he is employed.
3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian or committee has been appointed, then to such guardian or committee.
4. In all other cases to the defendant personally.
SEC. 7. When the service of the summons cannot be made as prescribed in the last preceding section, and when that fact appears, by affidavit, to the satisfaction of the court, or any judge thereof, and it appears, in like manner, that a cause of action exists against the defendant, and that the case is one of those mentioned hereafter in this section, the court or judge may grant an order that service be made by publication, in either of the following cases:
1. In actions for the recovery of real property, or of an estate or interest therein, or for the partition of real property, or for the sale of real property under a mortgage, lien, or otherwise, where the real property is within this District, and where any or all of the defendants reside out of the same.
2. In actions brought to establish or set aside a will, where any or all the defendants reside out of this District.
3. In actions brought against a non-resident of this District, or a foreign corporation having in this District property or debts owing to them subject to the process of the court.
4. In actions which relate to, or the subject of which is, real or personal property in this District, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of this District or a foreign corporation.
5. In all actions where the defendant, being a resident of this District, has departed therefrom with intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with a like intent.
Any person absent from this District shall be deemed to reside out of the same, within the meaning of the first four subdivisions of this section, whether he shall have acquired a residence elsewhere or not.
SEC. 8. The order shall direct the publication to be made in a newspaper to be published in this District, and for such a length of time as may be deemed reasonable, not less than once a week for six successive weeks, unless where otherwise provided. In case of publication, the court or judge shall direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the defendant at his place of residence, unless it shall appear that such residence is not known. When publication is ordered, personal service of a copy of the summons and complaint out of this District shall be equivalent to publication and deposit in the post office. In either case the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication. The publication shall contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer.
SEC. 9. Parties against whom a judgment has been rendered without other notice than the publication in the newspaper in this chapter required, except in cases of divorce, may, at any time within five years after the rendition of the judgment, have the same opened, and be allowed to defend.
SEC. 10. But before any such judgment shall be opened, such party shall give notice to the original complainant, or his heirs, devisees, executors, or administrators, of his intention to make application to have the judgment opened, and shall file a full answer to the original complaint, and an affidavit stating that, during the pendency of the action, he received no actual notice thereof in time to appear in court and object to the judgment, and shall also pay all such costs of the action as the court shall direct. The adverse party shall be allowed to present counter affidavits to show that, during the pendency of the action, the applicant had notice thereof in time to appear in court and make his defence.
SEC. 11. If any property which was the subject of, or properly sold under, any judgment sought to be opened as provided in the last two preceding sections, shall have passed into the hands of a purchaser in good faith, he shall not be affected by any proceedings consequent upon the opening of the judgment.
SEC. 12. In cases where it shall be necessary to make any persons defendants to any action, and the names of any or all of them shall be unknown to the plaintiff, and he shall annex to his complaint an affidavit of his want of knowledge of their names, and that their residence is, as he verily believes, not in this District, proceedings may be had against them without naming them; and the court shall make such order respecting notice and the publication thereof as may be deemed proper.
SEC. 13. Whenever it shall appear by the return of the marshal, his deputy, or the person appointed to serve a summons, that he has not served it upon the defendants as prescribed in the sixth section of this chapter, the clerk shall, at the request of the plaintiff, issue another summons, and so on until service be had; or the plaintiff may proceed by publication in the manner before stated, at his election.
SEC. 14. Where the action is against two or more defendants, and the summons is served on one or more, but not all of them, the plaintiff may proceed as follows:
1. If the action be against defendants jointly indebted upon a contract, he may proceed against the defendants 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, without prejudice to his rights against those not served, proceed against the defendants served, in the same manner as if they were the only defendants.
SEC. 15. A voluntary appearance of the defendant shall be equivalent to a personal service of the summons upon him.
SECTION 1. All the distinct forms of pleading heretofore existing inconsistent with the provisions of this Code, are abolished; and hereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, shall be those prescribed by this Code.
SEC. 2. The only pleadings on the part of the plaintiff shall be: 1. The complaint;
2. The demurrer; or,
3. The reply.
SEC. 3. The only pleadings on the part of the defendant shall be:
1. The demurrer; or,
2. The answer.
SEC. 4. The complaint shall contain:
1. The title of the cause; specifying the name of the court and the names of parties to the action, plaintiff and defendant;
2. A plain and concise statement of the facts constituting the cause of action, without unnecessary repetition;
3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated.
SEC. 5. The defendant may demur to the complaint only 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 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.
SEC. 6. The demurrer shall distinctly specify the grounds of objection to the complaint; unless it do so, it may be disregarded.
SEC. 7. The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue.
SEC. 8. If the complaint be amended, the amendments shall be filed and a copy served upon the defendant, or his attorney, if he has