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TERRITORY OF MONTANA.
TITLE I. AN ACT to regulate procedings in civil cases in the courts of justice of the Terri
tory of Montana.
THE FORM OF CIVIL ACTIONS, AND THE PARTIES TIERETO.
Be it enacted by the Legislative Assembly of the Territory
of Montana. Sec. 1. There shall be in this Territory but one form of civil action, which shall be the same at law and in equity.
Sec. 2. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.
Sec. 3. When a question of fact not put in issue by the pleadings is to be tried by the jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried, and such order shall be the only authority necessary for a trial.
SEC. 4. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act; but in suits brought by the assignee of a chose in action, account, or unliquidated demand, not assigned in writing, the assignor shall be made a party defendant, to answer as to his interest in the subject matter of the action, but in such action, if the assignor [desires] (denies) having any interest in the action, no costs shall be awarded against him, and a [defendant] (default) shall be deemed a denial.
Sec. 5. In case of an assignment of a thing in action, the action by the assignee shall be without any prejudice to a set off or other defence existing at the time of, or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good consideration, before due.
Sec. 6. An executor or administrator, trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person or persons for whose benefit the action is prosecuted.
SEC. 7. When a married woman is a party, her husband shall be joined with her, except when the action concerns her separate property, she may sue alone; when the action is between her and her husband, she may sue or be sued alone.
Sec. 8. If a husband and wife are sued together, the wife may defend for her own right.
Sec. 9. When an infant is a party, he shall appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge.
Sec. 10. The guardian shall be appointed as follows: First, when the infant is plaintiff
, upon the application of the infant, if he be of the age of fourteen years, or if under [the] (that) age, upon the application of a relative or friend of the infant. Second, when the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen (years), or neglect so to apply, then upon the application of a relative or friend of the infant, or any other party to the action.
SEC. 11. A father, or in case of his death or desertion of his family, the mother may maintain an action for the injury or death of a minor child; and a guardian for the injury of a ward; and an administrator for the death of a dece[n]dent.
Sec. 12. All persons having an interest in the subject of the action, and obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this act.
SEC. 13. Any person may be made a defendant who has, or
claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.
Sec. 14. Of the parties to the action, those who are united in interest shall be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant; the reason thereof being stated in the complaint; and when the question is one of common or general interest of many persons, or when the parties are numerous, and it is impract(ic)able to bring them all into court, one or more may sue or defend for the benefit of all.
SEC. 15. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes and sureties on the same or separate instruments, may all, or any of them, be included in the same action, at the option of the plaintiff.
SEC. 16. An action shall not abate by the death or other disability of the party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or other disability of a party, the court on motion may allow the action to be continued, by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.
SEC. 17. The court may determine any controversy before it between the parties, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. In all suits now pending in any court of record, or which may hereafter be brought, under this act, when it shall be necessary to make new parties or bring other parties into court, the plaintiff may in vacation, file in the office of the clerk of the court where the same is pending, a supplementary petition, setting forth their interest, and praying that they may be made parties to said suit; upon which supplemental petition, it shall be the duty of the clerk to issue a summons to said person, which summons shall be issued and served as in other cases, and the said parties so summoned sball answer or demur as in other cases, and the cause shall be proceeded with as if they had originally been parties to the suit.
Sec. 18. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof is situated, subject to the power of the court to change the place of trial as provided in this act: First, for the recovery of real property or mining claims, or of an estate or interest therein, or for the determination in any form of such right or interest, or for injuries to real property: Second, for the partition of real property : Third, for the foreclosure of a mortgage of real property.
Sec. 19. Actions for the following causes shall be tried in the county where the causes, or some part thereof arose; subject to (the) like slike) power of the court to change the place of trial: First, for the recovery of a penalty or forfeiture imposed by statute, except, that where it is imposed for an offence committed on a lake, river or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river, or other stream, and opposite to the place where the offence was committed : Second, 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 his aid, does anything touching the duties of such officer.
SEC. 20. In all other cases, the action shall be tried in the county in which the parties, or some of them, resided at the commencement of the action; or, if none of the parties reside in the Territory, the same may be tried in any county which the plaintiff may designate in his complaint, subject, however, to the power of the court to change the place of trial as provided in this act.
SEC. 21. The court may, on motion, change the place of trial in the following cases: First, when the county designated in the complaint is not the proper county: Second, when there is reason to believe that an impartial (trial) cannot be had therein : Third, when the convenience of witnesses and the ends of justice would be promoted by the change: Fourth, when, from any cause, the judge is disqualified from acting in the action.
Sec. 22. Civil actions in the district and probate courts shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon, Provided, that after the filing of the complaint, a defendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, answer or demur(r)er shall be deemed a waiver of summons.
Sec. 23. The clerk shall indorse on the complaint the day, month and year the same is filed, and at any time within one year after the filing of the same, the plaintiff may cause to be issued a summons thereon. The summons shall be issued and signed by the clerk, under the seal of the court, and directed to the defendant.
Sec. 24. The summons shall state the parties to the action, the court in which it is brought, the county in which the complaint is filed, and, if the action is brought for money, the amount demanded by the plaintiff; and shall require the defendant to appear and answer the complaint on the return day of the summons; and the clerk shall also indorse on the summons the names of the plaintiff's attorneys.
SEC. 25. The summons shall be returnable on the first day of the next term after it is issued, if the defendant resides in the county in which the action is pending, and the summons was issued ten days before the commencement of such term; or, if the defendant resides out of the county in which the suit is brought, but in the district, and the summons was issued fifteen days before the first day of the term; but if the defendant resides out of the dis(trict) in which the action is pending, the summons must (be) issued twenty days before the first day of the term.
Sec. 26. Any defendant served with (a) summons in the county in which the action is pending, ten days before the return day thereof, or any defendant (served) with (a) summons out of the county in which the suit is brought, but in the district, fifteen days before the return day thereof, or any defendant served with (a) summons out of the district, but in the Territory, twenty days