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court a precipe, stating the names of the parties to the action, and demanding that a summons issue thereon.

under seal.

date and com

SEC. 65. The summons shall be issued by the clerk, shall be summons to be under the seal of the court, from which the same shall issue, and shall be signed by the clerk. Its style shall be, "The Territory Style of action, of Kansas, county," and it shall be dated the day it is mand. issued. It shall be directed to the sheriff of the county, and command him to notify the defendant or defendants, named therein, that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at a time stated therein, or the petition will be taken as true, and judgment rendered accordingly; and where the action is for the recovery of money only, there shall be endorsed on the writ the amount to be furnished in the precipe, for which, with interest, judgment will be taken, if the defendant fail to answer.

If the defendant fail to appear, judgment shall not be rendered for a larger amount

and the costs.

to other counties.

SEO. 66. Where the action is rightly brought in any county, Summons issued according to the provisions of title four, a summons shall be issued to any other county against any one or more of the defendants, at the plaintiff's request.


SEC. 67. The summons shall be served and returned by the Return of sumofficer to whom it is delivered, except when issued to any other county than the one in which the action is commenced, within ten days from its date, and when issued to another county, shall be made returnable in not less than ten nor more than sixty days from the date thereof, at the option of the party having it issued.

be issued.

SEC. 68. When a writ is returned "not summoned," other writs Other writs may may be issued, until the defendant or defendants shall be summoned; and when defendants reside in different counties, writs may be issued to such counties at the same time.

CHAPTER 2. Service of Summons-Actual Service.


SEC. 69. The summons shall be served by the officer to whom Service of sumit is directed, who shall endorse on the original writ the time and manner of service. It may be also served by any person not a party to the action, appointed by the officer to whom it is directed. The authority of such person shall be endorsed on the writ, when the writ it served by a person appointed by the officer to whom it is directed, or when the service is made out of this Territory, the return shall be verified by oath or affirmation.

SEC. 70. The service shall be by delivering a copy of the sum- How performed.

Time and manner stated.

Return to be at time stated.


of service.

Summons upon corporations.

Insurance company.

Foreign corporation.

Upon minors.

mons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day.

SEC. 71. In all cases, the return must state the time and manner of service.

SEC. 72. The officer, to whom the summons is directed, must return the same at the time therein stated.

SEC. 73. An acknowledgment on the back of the summons, or the voluntary appearance of a defendant, is equivalent to


SEC. 74. A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office, or usual place of business of such corporation, with the person having charge thereof.

SEC. 75. Where the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency.

SEC. 76. Where the defendant is a foreign corporation, having a managing agent in this Territory, the service may be upon such agent.

SEC. 77. When the defendant is a minor, under the age of fourteen years, the service must be upon him and upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, or if the fourteen years of age, service on him alone shall be sufficient. The manner of service may be the same as in the case of adults.

minor be more than

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SEC. 78. Service may be made by publication in either of the following cases: In actions brought under the fifty-second and fifty-third sections of this code, where any or all of the defendants reside out of the Territory; in actions brought to establish or set aside a will, where any or all the defendants reside out of the Territory; in actions brought against a non-resident of this Territory, or a foreign corporation, having in this Territory property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way; in actions which relate to, or the subject of which is real or personal prop

erty in this Territory, 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 the Territory or a foreign corporation; and, in all actions where the defendant, being a resident of the Territory, has departed therefrom, or from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent.

vice by publica

SEC. 79. Before service can be made by publication, an affida- Requisite for servit must be filed, that service of a summons cannot be made tion. within this Territory, on the defendant or defendants, to be served by publication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication.

SEC. 80. The publication must be made six consecutive weeks, Time and manner in some newspaper printed in the county where the petition is filed, if there be any printed in such county; and if there be not, in some newspaper printed in this Territory, of general circulation in that county. It must 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. 81. Service by publication shall be deemed complete when publication when it shall have been made in the manner and for the time prescribed in the preceding section; and such service shall be proved Proved by printer by the affidavit of the printer, or his foreman or principal clerk,

or other person knowing the same.

out of Territory.

SEC. 82. In all cases where service may be made by publica- Personal service tion, personal service of a copy of the summons and complaint may be made out of the Territory.

ments and orders.

SEC. 83. A party against whom a judgment or order has been Opening of judgrendered, without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that, during the pendency of the action, he had no actual notice thereof, in time to appear in court and make his defence; but the title to any

property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedTitle of purchasings under this section, nor shall they affect the title of any prop

ers in good

not affected.

When heirs are defendants.

Actions against two or more defendants.

Actions against co-defendants not barred.

When summons served action pending.

Record of judg

ment to be made

the county.

erty sold before judgment under an attachment. The adverse party, on the hearing of an application to open judgment or order, as provided by this section, 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. 84. In actions where it shall be necessary to make the heirs or devisees of any deceased person defendants, and it shall appear by the affidavit of the plaintiff, annexed to his petition, that the names of such heirs or devisees, or any of them, and their residence, are unknown to the plaintiff, proceedings may be had against such unknown heirs or devisees, without naming them; and the court shall make such order respecting service as may be deemed proper. If service by publication be ordered, the publication shall not be less than six weeks.

SEC. 85. Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: First, If the action be against defendants jointly indebted upon 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. Second, 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. 86. Nothing in this code shall be so construed as to make a judgment, against one or more defendants jointly or severally liable, a bar to another action against those not served.

SEO. 87. When the summons has been served, or publication made, the action is pending, so as to charge third persons with notice of its pendency; and, while pending, no interest can be acquired by third persons in the subject matter thereof, as against the plaintiff's title.

SEC. 88. When any part of real property, the subject matter of an action, is situated in any other county or counties than the

one in which the action is brought, a certified copy of the judg ment in such action must be recorded in the register of deed's office of such other county or counties, before it shall operate therein as notice, so as to charge third persons, as provided in the preceding section. It shall operate as such notice, without record, in the county where it is rendered; but this section shall not apply to actions or proceedings under any statute, now in force, which does not require such record.



which may be

SEC. 89. The plaintiff may unite several causes of actions in Kinds of actions the same petition, whether they be such as have heretofore been united. denominated legal or equitable, or both, when they are included in either one of the following classes: First, The same transaction, or transactions connected with the same subject of action. Second, Contracts, express or implied. Third, Injuries, with or without force, to person and property, or either. Fourth, Injuries to character. Fifth, Claims to recover the possession of personal property, with or without damages for the withholding thereof. Sixth, Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same. Seventh, Claims against a trustee, by virtue of a contract, or by operation of law.

SEC. 90. The causes of action so united must affect all the parties to the action, and not require different places of trial.



CHAPTER 1. Pleadings in General.

SEC. 91. The pleadings are the written statements, by the Pleadings. parties, of the facts, constituting their respective claims and defences.

SEC. 92. The rules of pleading, heretofore existing in civil Rules of pleading actions, are abolished; and, hereafter, the forms of pleading, in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this code.


SEC. 93. The only pleadings allowed are: First, The petition Pleadings alby the plaintiff. Second, The answer or demurrer by the defendant. Third, The demurrer or reply by the plaintiff. Fourth, The demurrer by the defendant.

CHAPTER 2. The Petition.

SEC. 94. The petition must contain: First, The name of the What petition

must contain.

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