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before the return day thereof, shall be required to appear and answer or demur to the complaint on the return day of the summons, or judgment may be taken by default for the amount due, or the relief sought.
SEC. 27. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, may file with the recorder of the county 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, and description of the property in that county affected thereby. From the time of the [time of the] filing, only, shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property effected thereby.
Sec. 28. The summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him, or appointed by a judge of the court in which the action is brought. When the summons is served by any other person, as before provided, it shall be returned to the office of such clerk, with the affidavit of such person, of its service.
SEC. 29. The summons shall be served as follows: First, if the suit be against a corporation, by reading the same to the president, or other head of the corporation, secretary, cashier, or managing agent thereof, or by leaving a copy of the same at the office, or other place of business of said corporation, in a conspicuous place: Second, if against a minor under the age of fourteen years, by reading the same to the father, mother, or guardian of the defendant; or, if there be none in the Territory, then to any person having the care, control or custody of such minor, or with whom he resides, or in whose service he is employed; or by leaving a copy thereof at the residence of such father, mother, guardian, or person having the care, control, or custody of such minor; or (of) the person by whom he is employed; or at whose residence such minor resides : Third, if against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, by reading the same to such guardian, or by leaving a copy thereof at the dwelling-house, or usual place of abode of such guardian, with some person residing there, or posting the same in a conspicuous place : Fourth, in all other cases, by reading the same to the defendent, personally, or by
leaving a copy thereof at the dwelling-house, or usual place of abode of such defendent, with some person residing there, or by posting the same in a conspicuous place.
Sec. 30. When the person on whom service is to be made resides out of the Territory, or has departed therefrom, or after due diligence cannot be found within the Territory, or conceals himself to avoid the service of summons, and that fact shall appear by affidavit, the court, or the clerk thereof, in vacation, shall grant an order of publication; the order to notify the non-resident, absent or concealed defendant, of the pendency of the action, stating briefly the general nature thereof, and require [them).(such defendants) to appear and answer the complaint on the return day of the summons, or that the cause will be heard, and determined in their absence.
Sec. 31. The order shall direct the publication to be made in a newspaper published in the county in which the suit is brought, if any there be, if not, then in the paper published nearest thereto, in the Territory. Such publication shall be made at least once a week for four weeks successively, the last of which shall be sixty days before the first day of the term of court at which said suit will be heard. When the publication is ordered, personal service of the summons out of the Territory, sixty days before the first day of the term at which the suit is heard, shall be equivalent to publication.
Sec. 32. Whe(n) the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: First, If the action be against the defendants jointly indebted on 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, that it may be enforced against the joint property of all, and the separate property of the defendant served; or, Second, If the action be against defendants severally liable, he may proceed against the defendants served, as if they were the only defendants.
Sec. 33. In the case of publication, the affidavit of the printer, or his foreman, or principal clerk, or other person having personal knowledge of the same, shall be filed, showing such publication. And in case of personal service out of the Territory, the affidavit
of the person serving the summons shall be filed showing such service.
SEC. 34. A written acknowledgment of the defendant, on the summons, of its service, shall be equivalent to service of the same, on proof by affidavit being made to the court, that the signature of the defendant or defendants to such acknowledgment of service is genuine.
SEC. 35. From the time of the service of the summons, or the voluntary appearance of the defendant, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings.
Sec. 36. The pleadings are the formal allegations of the parties of their respective claims and defences for the judgment of the court.
SEC. 37. All the forms of pleadings in civil actions, and [and] the rules by which the suffice(i)n(c)y of the pleadings shall be determined, shall be those prescribed in this act.
Sec. 38. The only pleadings on the part of the plaintiff shall be the complaint, deur(r)er, or reply to the defendant's answer; and the only pleadings on the part of the defendant shall be a demur(r)er to the complaint, or a demur(r)er to the reply, or an answer to the complaint. The demur(r)er or answer of the defendant, and the demur(r)er or reply of the plaintiff, shall be filed with the clerk.
Sec. 39. The complaint shall contain, First, The title of the action, specifying the name of (the) court and the name of the county in which the action is brought, and the names of the parties to the action, plaintiff and defendant. Second, A statement of the facts constituting the cause of action, in ordinary and concise language, and when (the) complaint contains more than one cause of action, each shall be stated in a separate paragraph, and numbered. Third, A demand of the relief which the plaintiff(s) claims, if the recovery of money or damages be demanded, the amount thereof ghall be stated.
Sec. 40. The defendant may demur to the complaint, within the time required to answer, when it appears on the face thereof, either, First, That the court has no jurisdiction of the person of the defendant, or the subject of the action ; or, Second, that the plaintiff has not the legal capacity to sue ; or, Third, that there is another action pending between the same parties for the same cause; or, Fourth, that there is a defect or misjoinder of parties, plaintiff or defendant; or, Fifth, that several causes of action have been improperly united; or, Sixth, that the complaint does not state facts sufficient to constitute a cause of action; or, Seventh, that the action has not been commenced within the (time) limited by law.
SEC. 41. The demurrer shall specify the cause of demurrer, and each cause shall be separately stated and numbered.
Sec. 42. The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue; or may demur and answer at the same time.
SEC. 43. The complaint may be amended at any time before answer, without leave, and after answer, with leave of the court, upon such terms as may be just, and the court may in its discretion require the complaint as amended to be filed, and a copy of the amendment (to be) served upon every defendant affected thereby, or upon his attorney, if he has appeared by attorney; but no amendment of the complaint shall be filed without leave of the court, increasing the demand of the plaintiff in (an) action for the recovery of money. The defendant shall answer such amended complaint in such time as may be ordered by the court, and judgment may be entered by default, upon failure to answer, as in other cases.
SEC. 44. When any of the matters enumerated in section forty do not appear upon the face of the complaint, the objection may be taken by answer.
Sec. 45. If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objections to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.
Sec. 46. The answer of the defendant shall contain, First, a specific or general denial of each allegation of the complaint, con
troverted by the defendant, but a general denial, shall only put in issue the material and express allegations of the complaint. Second, a statement of any new matter or counter claim constituting a defence, in plain and concise language. When the answer contains new matter constituting a defence, the plaintiff may within the time allowed by the court, reply to such new matter, and if he fail to do so, such new matter shall be taken as true, and deemed proved at the trial. If new matter of set off and counter claim be set up in the answer, the reply may contain matter of set off and counter claim, not embraced in the complaint. All new matter set up in the reply, shall be deemed denied by the defendant.
Sec. 47. The counter-claim mentioned in the last section, sball be one existing in favor of the defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action : First, a cause of action arising out of the transaction set forth in the complaint or answer, as the foundation of the plaintiff's claims, or the defendant's defence, connected with the subject of action. Second, in an action arising upon contract, any other cause of action arising also upon contract, and existing at the commencement of the action.
SEC. 48. When cross demands bave existed between persons, under such circumstances that if one had brought an action against the other, a counter claim could have been set up, neither shall be deprived of the benefit thereof, by the assignment or death of the other, but the two demands shall be deemed compensated, so far as they equal each other.
Sec. 49. The defendant may set forth by answer, as many defences and counter claims as he may have; they shall each be stated in a separate paragraph, and numbered; and shall refer to the cause of action which they are intended to answer, in
a manner by which they may be intelligibly distinguished.
Sec. 50. When the answer contains new matter, the plaintiff may within the time allowed by the court, demur to the same for insufficiency, stating in his demurrer the grounds thereof; and he may also within the same time, demur to one or more of the defences set up in the answer, and the defendant, in like manner, may demur to the plaintiff's reply. Sham and irrelevant answers, replies and defences, and so much of any answer or reply as may be irrelevant, redundant or immaterial, may be stricken out, on