Court may award and tax costs in other cases.

Action against several parties to

of to be recovered.

upon a judgment in his favor, in the actions mentioned in the last two sections.

Sec. 566. In other actions, the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.

SEO. 567. Where several actions are brought on one bill of comes obligation exchange, promissory note or other obligation, or instrument in

writing, against several parties who might have been joined as defendants in the same action, as allowed by section forty-five, no costs shall be recovered by the plaintiff in more than one of such actions, if the parties proceeded against, in the other actions, were, at the commencement of the previous action, openly within the Territory.

SEC. 568. When a summons is issued to another county than may be returned that in which the action or proceeding is pending, it may

be xherifl.

returned by mail, and the sheriff shall be entitled to the same fees as if the summons had issued in the county of which he is sheriff.

Summons issued to another county

TITLE XVIII.

ACTIONS AND PROCEEDINGS IN PARTICULAR CASES.

Actions against adverse claimants

parties sion.

What petition oball contain.

CHAPTER 1. Actions concerning Real Property.
SEC. 569. Ar action may be brought by any person

in

possesto real estate byo sion, by himself or tenant, of real property, against any person

who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.

Sec. 570. In an action for the recovery of real property, it shall be suficient if the plaintiff state in his petition, that he has a real estate therein and is entitled to the possession thereof, describing the same, as required by section one hundred and thirtysix, and that the defendant unlawfully keeps him out of the possession. It shall not be necessary to state how the plaintiff's estate or ownership is derived.

SEC. 571. It shall be sufficient in such action, if the defendant, in his answer, deny generally the title alleged in the petition, or that he withholds the possession, as the case may be; but if he deny the title of the plaintiff, possession by the defendant

shall be taken as admitted. Where he does not defend for the Defending for a

whole premises, the answer shall describe the particular part for which defence is made.

Answer.

, plaintill must recover.

new at

the .

appeal.

may be availed of.

SEO. 572. In an action by a tenant in common of real prop- Tenants in comerty against a co-tenant, the plaintiff must, in addition to what is required in section five hundred and seventy, state in his petition that the defendant either denied the plaintiff's right or did some act amounting to such denial.

Seo. 573. In an action for the recovery of real property, where wherg right to rothe plaintiff shows a right to recover at the time the action was during pendeney commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover for withholding the property.

SEC. 574. In an action for the recovery of real property, the Partymardan party against whom judgment is rendered, may, at any time dur- terima daring ing the term at which the judgment is rendered, demand another trial by notice on the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term.

Sec. 575. No further trial can be had in such action, except New trial upon upon appeal, unless for good cause shown, as in other actions.

Sec. 576. The parties in an action for the recovery of real Statuton which property, may avail themselves, if entitled thereto, of the relief of the statutes in force for the relief of occupying claimants of land.

SEC. 577. The action of waste is abolished, but any proceed- Action of wasio ing heretofore commenced or judgment rendered, or right acquired, shall not be affected thereby; and where the action of waste is specially mentioned and authorized in any statute, it may be used until otherwise provided, but it shall be commenced and proceeded in throughout, in the manner prescribed for the civil action of this code. Wrongs heretofore remediable by actions of How provided waste, are subjects of action as other wrongs, and the same relief shall be granted, as may now be granted under the action of waste.

CIIAPTER 2. Actions on Official Securities. Sec. 578. When an officer, executor or administrator within Porfeiture of ofthis Territory, by misconduct or neglect of duty, forfeits his bond or renders his sureties liable, any person injured thereby or who is, by law, entitled to the benefit of the security, may bring an action thereon in his own name, against the officer, executor or administrator and his sureties, to recover the amount to which Inhyred parties he may be entitled by reason of the delinquency. The action Action on acero may be instituted and proceeded in on a certified copy of the boud. bond, which copy shall be furnished by the person holding the original thereof.

for.

Sareties liable for all oficial acts.

Sec. 579. A judgment in favor of a party for one delinquency, does not preclude the same or another party from an action on the same security for another delinquency,

Mandanas to whom issued.

Cannot control jadicial disortion.

When it may not issue.

formation.

What alternative writ must state.

CHAPTER 3. Proceedings upon Mandamus. SEO. 580. The writ of mandamus may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. But, though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion.

Sec. 581. This writ may not be issued in any case where there

is a plain and adequate remedy in the ordinary course of the law. per motiuo on in- It may issue on the information of the party beneficially inter

ested.

SEO. 582. The writ is either alternative or peremptory. The alternative writ must state concisely the facts showing the obligation of the defendant to perform the act, and his omission tu perform it, and command him that immediately upon the receipt of the writ, or at some other specified time, he do the act required to be performed or show cause before the court whence the writ issued, at a specified time and place, why he has not done

so; and that he then and there return the writ with his certificate Writu Puse of having done as he is commanded. The peremptory writ must

be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded, must be omitted.

Sec. 583. When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases, the alternative writ must be first issued.

Sec. 584. The motion for the writ must be made upon affidasiverse party. vit, and the court may require a notice of the application to be

given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.

SEC. 585. The allowance of the writ must be endorsed thereon, dorsed on it and signed by the judge of the court granting it, and the writ must

be served personally upon the defendant; if the defendant, duly served, neglect to return the same, he shall be proceeded against as for a contempt.

poremptory must .

When & peremptory writ allowed.

Motion upon affdavit, notice to

Allowance of the

signed by the judge.

shown by answer

made

must be allowod.

plaintiff he and a mandamus issue.

Sec. 586. On the return day of the alternative writ, or such canšo may bo further day as the court may allow, the party on whom the writ as in civil action. shall have been served, may show cause by answer made in the same manner as an answer to a petition in a civil action.

Sec. 587. If no answer be made, a peremptory mandamus If no answer to must be allowed against the defendant; if answer be made con- copies on dawws taining new matter, the same shall not, in any respect, conclude the plaintiff, who may, on the trial or other proceeding, avail himself of any valid objections to sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.

Sec. 588. No other pleading or written allegation is allowed Pleadings and than the writ and answer ; these are the pleadings in the case, and have the same effect, and are to be construed and may be amended in the same manner as pleadings in a civil action; and the issues thereby joined must be tried, and the further proceedings thereon hau, in the same manner as in a civil action.

SEC. 589. If judgment be given for the plaintiff, he shall re- if judgment for cover the damages which he shall have sustained, to be ascer- kecokep damages tained by the court or jury, or by referees, as in a civil action, and costs; and a peremptory mandamus shall, also, be granted to him without delay.

Sec. 590. A recovery of damages, by virtue of this chapter, Recovery of damagainst a party who shall have made a return to a writ of man- any other action. damus, is a bar to any other action against the same party for the making of such return.

SEC. 591. Whenever a peremptory mandamus is directed to When finos may any public officer, body or board, commanding the performance of any public duty, specially enjoined by law, if it appear to the court that such officer or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine, not exceeding five hundred dollars, upon every such officer or member of such body or board. Such fine, when collected, shall be paid into the treasury of the Fine paid into county where the duty ought to have been performed; and the payment thereof is a bar to an action for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined.

ages

be

treasury a bar to other penalties.

TITLE XIX.

GENERAL PROVISIONS APPLICABLE TO TIIE WIIOLE CODE.

CHAPTER 1. Process.
Sec. 592. The style of all process shall be: “ The Territory

Style of process under seal and signed by clerk.

When sheriff is a party, shall be directed coro

terested, court shall direct.

of Kansas,

county.” It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it issued.

Sec. 593. An order for a provisional remedy or any other here there to process, in an action wherein the sheriff is a party or is interest

ed, shall be directed to the coroner. If both these officers are interested, the process shall be directed to and executed by a person appointed by the court or judge.

Sec. 594. The court or judge, for good cause, may appoint a person to serve a particular process or order, who shall have the same power to execute it which the sheriff has. The person may

be appointed on the motion of the party obtaining the process or Return must be order, and the return must be verified by affidavit. He shall be Entitled to fees. entitled to the fees allowed to the sheriff for similar services.

Court for cause may appoint şpecial officer.

to

Clerks shall issue writs.

Precipe filed.

Clerk to file papers.

Keep papers separate and label them.

Papers to be endorsed with the

return.

CHAPTER 2. Duties of Clerks. Sec. 595. All writs and orders for provisional remedies, and process of every kind, shall be issued by the clerks of the several courts; before they shall be issued, a precipe shall be filed with the clerk demanding the same.

Sec. 596. It is the duty of the clerk of each of the courts, to file together, and carefully preserve in his office, all papers delivered to him for that purpose, in every action or special proceeding.

Sec. 597. He shall keep the papers, in each case, separate, carefully enveloped in a wrapper, labeled with title of the cause.

Sec. 598. He shall endorse upon every paper filed with him, tiewe of aling and the day of filing it; and upon every order for a provisional re

medy, and upon every undertaking given under the same, the day of its return to his office.

Sec. 599. He shall, upon the return of every summons served, enter upon

the docket the name of the defendant or defendants summoned, and the day of the service upon each one. shall be evidence of the service of the summons, in case of the loss thereof.

SEC. 600. He shall keep the records and books and papers appertaining to the court, and record its proceedings.

SEC. 601. The provisions of article eight, of title nine, prescribing the duties of clerks, shall, as far as they are applicable, apply to the clerks of all courts of record.

Sec. 602. The clerk of each of the courts shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the

Shall enter names of defendants summoned upon docket.

The entry

Shall keep book and records,

Provisions applicable to clerks.

Powers and duties.