Bec. CHAPTER 5-PARTIES 121. Assignment of thing in action not to prejudice defense. 122. Married woman as party. 123. Defense by married woman. 124. Seduction; action by unmarried female. 125. Same; action by parents. 126. Actions for wrongful death. 127. Substitution of parties. 128. Actions by or against associates under common name; service; judgment. 129. Suing party by fictitious name. 130. Interpleader. § 121. Assignment of thing in action not to prejudice defense In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any setoff or other defense existing at the time of, or before, notice of the assignment; but this section does not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before maturity. § 122. Married woman as party A married woman may be sued without her husband's being joined as a party, and may sue without her husband's being joined as a party in all actions, including those for injury to her person, libel, slander, false imprisonment, or malicious prosecution, or for the recovery of her earnings. § 123. Defense by married woman If a husband and wife are sued together, the wife may defend for her own right, and if the husband neglects to defend, she may defend for his right also. § 124. Seduction; action by unmarried female An unmarried female may maintain, as plaintiff, an action for her own seduction occurring at a time when she was below the age of 21 years or when she was incapable of giving legal consent through temporary or permanent unsoundness of mind, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor. § 125. Same; action by parents (a) An action for the seduction of an unmarried female occurring at a time when she was below the age of 21 years or when she was incapable of giving legal consent through temporary or permanent unsoundness of mind may be maintained by: (1) the parent entitled to the services and earnings of the female; or (2) if both parents are equally entitled to the services and earnings, the father, or upon his failure to act, the mother; or (3) if the female is illegitimate, the mother. (b) In an action brought pursuant to this section every element of damages to either parent may be recovered. The action may be maintained even though the child is not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there is no loss of service. § 126. Actions for wrongful death (a) Whenever, by an injury done or happening within the Canal Zone, the death of a person is caused by the wrongful act, neglect, or default of a person or corporation, and the act, neglect or default is such as will, if death does not ensue, entitle the person injured, or if the person injured is a married woman, entitle her or her husband, either individually or jointly, to maitain an action and recover damages, the person who or corporation which is liable if death does not ensue is liable to an action for damages, notwithstanding the death of the person injured, and even though the death is caused under circumstances which constitute a felony. (b) An action pursuant to this section shall be brought by and in the name of the personal representatives and within one year after the death of the deceased person. This section does not preclude assignment under section 26 of the Federal Employees' Compensation Act (5 U.S.C., sec. 776), by beneficiaries under that Act or their legal representatives, of causes of action created by this section. (c) An action may not be maintained pursuant to this section if the person suffering injury and death, or any person for him, has recovered damages on account of the injury. (d) In an action pursuant to this section the court or jury shall award such damages as it deems to be a fair and just compensation assessed with reference to the pecuniary injury, resulting from the death, to the surviving spouse and the children of the deceased, and if there is neither a surviving spouse nor child, then to the parents of the deceased, and if there is no parent, then to the brothers and sisters and other blood relatives dependent upon the deceased for support. (e) Damages recovered in an action pursuant to this section shall be for the exclusive benefit of the surviving spouse and other persons enumerated by subsection (d) of this section, and shall be distributed to them, in the order named in that subsection, according to the laws in force in the Canal Zone applicable to the distribution of estates. (f) This section does not authorize a suit against the United States nor modify or repeal any other law. § 127. Substitution of parties An action or proceeding does not abate by the death or disability of a party, or by the transfer of an interest therein, if the cause of action survives or continues. The substitution of parties is governed by Rule 25 of the Federal Rules of Civil Procedure, including the time limitations specified in that rule. § 128. Actions by or against associates under common name; service; judgment In When two or more persons, associated in a business, transact the business under a common name, whether it comprises their names or not, the associates may sue or be sued by the common name. actions against the associates, the summons may be served on one or more of the associates; and the judgment binds the joint property of all the associates, and the individual property of the party or parties served with process, in the same manner as if all had been named defendants and had been sued upon their joint liability. § 129. Suing party by fictitious name When the plaintiff is ignorant of the name of a defendant, he shall state that fact in the complaint, and the defendant may be designated in a pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. § 130. Interpleader If a plaintiff or defendant makes a claim for interpleader pursuant to Rule 22 of the Federal Rules of Civil Procedure and deposits with the court the money or thing which is the subject of the claim as provided by Rule 67 of the Federal Rules of Civil Procedure, the court may make an order discharging him from liability to any of the conflicting claimants. CHAPTER 7-COMMENCEMENT OF ACTIONS; SERVICE OF PROCESS Sec. 161. Service on infant or incompetent person. 162. Service by publication; actions in which authorized. 163. Same; manner of publication; service outside Canal Zone. 164. Same; personal judgment. 165. Same; default judgment. 166. Relief from judgment; defendant not personally served. 167. Proof of service. 168. When jurisdiction acquired; voluntary appearance. 169. Failure to serve all defendants. 170. Service on nonresident motorists and absent motorists. § 161. Service on infant or incompetent person (a) Service upon an infant is made by delivering a copy of the summons and of the complaint to him personally; and if he is under the age of 14 years and resides within the Canal Zone also to his father, mother, or guardian, or if there is none within the Canal Zone then to any person having the care or control of the infant, or with whom he resides, or in whose service he is employed. (b) Service upon an incompetent person is made by delivering a copy of the summons and of the complaint to him personally; and if he resides within the Canal Zone and has been judicially declared to be incapable of conducting his own affairs and a guardian has been appointed for him, also to his guardian. § 162. Service by publication; actions in which authorized The court may order that service be made by the publication of the summons when: (1) it appears by affidavit to the satisfaction of the court that the person on whom service is to be made: A) resides out of the Canal Zone; or (B) has departed from the Zone; or (C) after due diligence cannot be found within the Zone; or (D) conceals himself to avoid the service of summons; or (E) is a corporation having no officer or other person upon whom summons may be served who, after due diligence, can be found within the Zone; and (2) it also appears by affidavit, or by the verified complaint on file, that: (A) a cause of action exists against the defendant upon whom service is to be made, or that he is a necessary or proper party to the action; or (B) it is an action which relates to or the subject of which is real or personal property in the Zone, in which the defendant person or corporation has or claims a lien or interest, actual or contingent, or in which the relief demanded consists wholly or in part in excluding the person or corporation from any interest therein. § 163. Same; manner of publication; service outside Canal Zone (a) The court by its order for publication shall prescribe the form of the summons to be published, which shall include a brief statement of the relief demanded. (b) The court shall direct the publication to be made in such newspaper or newspapers designated by the court as is or are most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week for three consecutive weeks. The last publication against a defendant residing out of the Canal Zone, or absent therefrom, may not be less than 40 days before the day on which the defendant is required to appear. (c) In case of publication, if the residence of the nonresident or absent defendant is known, the court shall direct a copy of the summons and complaint to be forthwith deposited by the clerk in the post office, directed to the person to be served, at his place of residence. If the residence of the defendant is unknown, it shall be directed to his last known place of residence with the request to forward if not called for in five days. (d) Upon application of the plaintiff in a case where service by publication may be ordered, the court shall authorize personal service upon the defendant outside the Canal Zone by delivery to him in person of a true copy of the summons and the complaint, by any person not a party to or otherwise interested in the subject matter in controversy. That service has only the effect of service of summons by publication. Return on that service shall be made under oath, with a notation of the time and place of service. § 164. Same; personal judgment Except as provided by a statute of the United States other than sections 162 and 163 of this title, if jurisdiction is acquired over a person who is outside the Canal Zone by publication of summons or by service outside the Canal Zone, the court may render a personal judgment against him only if he was personally served with a copy of the summons and complaint, and was a resident of the Canal Zone (1) at the time of the commencement of the action, or (2) at the time that the cause of action arose, or (3) at the time of service. § 165. Same; default judgment If the defendant fails to answer the complaint in an action where the service of the summons was by publication or where the summons was served outside the Canal Zone, the plaintiff, upon the expiration of the time for answering, may, upon proof of the publication or service, and that no answer has been filed, apply for judgment. The court shall thereupon require proof to be made of the allegations of the complaint; and require the plaintiff, or his agent, to be examined, on oath, respecting any payments that have been made to the plaintiff, or to anyone for his use, on account of any demand mentioned in the complaint, and may render judgment for the amount which he is entitled to recover. In actions involving merely the possession of real property where the complaint is verified and shows by proper allegations that no party to the action claims title to the real property involved, either by accession, transfer, will, or succession but only the possession thereof, the court may render judgment upon proof of occupancy by plaintiff and ouster by defendant. § 166. Relief from judgment; defendant not personally served If the summons in an action has not been personally served on the defendant, the court, on such terms as may be just, may allow the defendant or his legal representative, at any time within one year after the rendition of any judgment in the action, to answer to the merits of the original action. § 167. Proof of service (a) Proof of the service of summons and complaint is as follows: (1) if served by the marshal or deputy, his certificate thereof; (2) if by any other person, his affidavit thereof; (3) in case of publication, the certificate of the clerk of the court to which a copy of the publication shall be attached; and a certificate of the clerk showing the deposit of a copy of the summons and complaint in the post office, if the same has been deposited; or (4) the written admission of the defendant. (b) In case of service otherwise than by publication, the certificate or affidavit shall state the time and place of service. § 168. When jurisdiction acquired; voluntary appearance From the time of the service of a copy of the summons and of the complaint in a civil action, where service of a copy of the complaint is required, or of the completion of the publication when service by publication is ordered, the court has jurisdiction of the parties and control of all the subsequent proceedings. The voluntary appearance of a defendant is equivalent to personal service of a copy of the summons and of the complaint upon him. § 169. Failure to serve all defendants If the action is against two or more defendants jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants. § 170. Service on nonresident motorists and absent motorists (a) The use or operation in the Canal Zone of a motor vehicle: (1) by a nonresident; or (2) in the business of a nonresident; or (3) owned by a nonresident if so used or operated with his permission, express or implied is equivalent to an appointment by the nonresident of the executive secretary of the Canal Zone Government to be his true and lawful attorney upon whom may be served the summons in an action against him, growing out of an accident or collision in which the nonresident may be involved while using or operating the motor vehicle in the Canal Zone, or in which the motor vehicle may be involved while being used or operated in the Canal Zone in the business of the nonresident or with the permission, express or implied, of the nonresident owner. That use or operation shall be a signification of the nonresident's agreement that the summons against him which is served in the manner provided in this section shall be of the same legal force and validity as if served on him personally within the Canal Zone, and that the appointment of the executive secretary shall be irrevocable and binding on his executor or administrator. (b) If the nonresident dies prior to the commencement of an action brought pursuant to this section, service of process shall be made on his executor or administrator in the same manner and on the same notice as is provided in the case of the nonresident himself. If an action has been duly commenced under this section by service upon a nonresident who dies thereafter, the court shall allow the action to be continued against his executor or administrator upon motion with such notice as the court deems proper. (c) Service of the process shall be made by delivering a copy of the summons and complaint with a fee of $2 for each nonresident to be served to the executive secretary of the Canal Zone Government and such service shall be a sufficient service on the nonresident subject to compliance with subsection (d) or (e) of this section. (d) A notice of the service on the executive secretary of the Canal Zone Government and a copy of the summons and complaint shall be forthwith sent by or on behalf of the plaintiff to the defendant by registered or certified mail with return receipt requested. The plaintiff shall file with the court the original summons, an affidavit of compliance with this section, and either a return receipt purporting to be signed by the defendant or a person qualified to receive his registered or certified mail, in accordance with postal rules and customs: or, if acceptance was refused by the defendant or his agent, the original envelope bearing a notation by the postal authorities that |
