Слике страница
PDF
ePub

CHAPTER V.

Commencement of and Parties to an Action.

MILE I.-Commencement of an Action.

TITLE LI.-Parties to an Action.

TITLE I.

Commencement of an action.

Article 1. The summons and accompanying papers; personal service thereof; appearance of the defendant.

2. Substitutes for personal service in special cases.

ARTICLE FIRST.

The summons and accompanying papers; personal service thereof appearance of the defendant.

416, Action to be commenced by summons; time when court acquires jurisdiction.

417. Requisites of summons.

418. Form of summons.

419. Service of copy complaint or notice with summons; consequence of failure.

420. Cases where such service must be made.

1. Appearance of defendant.

422. When defendant must answer before time to appear expires.

423. Notice of no personal claim; effect of service thereof.

424 Effect of voluntary appearance.

455 Summons; when and by whom served. Sheriff's duty.

426. How personal service of summons made upon a natural person.

427, 428. Id.; in certain cases of infancy, or lunacy, etc., not judicially declared.

429. Id.: when delivery of copy to lunatic dispensed with.

40. Designation, by a resident, of a person upon whom to serve a summons during his absence: effect and revocation thereof.

431. How personal service of summons made upon a domestic corporation. 432. Id.; upon a foreign corporation.

43, Service of process, etc., to commence a special proceeding. 434. Proof of service of summons, etc.; how made.

416. Action to be commenced by summons; time when court acquires jurisdiction.

A civil action is commenced by the service of a summons Bet from the time of the granting of a provisional remedy, the art acquires jurisdiction, and has control of all the subsequent Proceedings. Nevertheless, jurisdiction thus acquired is condital, and liable to be divested, in a case where the jurisdiction the court is made dependent, by a special provision of law, pon some act, to be done after the granting of the provisional fis]y.

Co. Proc., part of § 127, and id., § 139.

117. [Am'd, 1879.] Requisites of summons.

The summons must contain the title of the action, specifying the court in which the action is brought, the names of the parties to the action, and, if it is brought in the supreme court, the Pame of the county in which the plaintiff desires the trial; and Est be subscribed by the plaintiff's attorney; who must add to his signature his office address, specifying a place within the

[ocr errors]

State where there is a post-office. If in a city, he must add the street, and the street number, if any, or other suitable designation of the particular locality.

Co. Proc., 128, remodelled. See ante, § 55.

§ 418. [Am'd, 1877.] Form of summons.

The summons, exclusive of the title of the action and the subscription, must be substantially in the following form, the blanks being properly filled:

"To the above named defendant: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Dated

The summons is deemed the mandate of the court.

See Co. Proc., § 129.

§ 419. [Am'd, 1879.]

Service of copy complaint or notice

with summons; consequence of failure.

A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the summons, the plaintiff cannot take judgment by default without application to the court, unless either the defendant appears, or by a notice is served with the summons, stating the sum of money for which judgment will be taken, and the case is one embraced in the Dext section.

Id. See post, § 1212, and §§ 422, 479.

§ 420. [Am'd, 1877.] Cases where such service must be made.

Judgment may be taken without application to the court, where the complaint sets forth one or more causes of action, each con sisting of the breach of an express contract to pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only; or an express or implied contract to pay nioney received or disbursed, or the value of property delivered, or of services rendered by, to, or for the use of, the defendant or a third person; and thereupon demands judgment for a sum of money only. This section includes a case, where the breach of the contract, set forth in the complaint, is only partiai; or where the complaint shows that the amount of the plaintiff's demand has been reduced by payment, counterclaim, or other credit.

Id. See post, § 1212.

§ 421. Appearance of defendant.

The defendant's appearance must be made by serving upon the plaintiff's attorney, within twenty days after service of the summons, exclusive of the day of service, a notice of appearance, or a copy of a demurrer or of an answer. A notice or pleading, so served must be subscribed by the defendant's attorney, who must add to his signature his office address, with the particulars prescribed in section 417 of this act, concerning the office address of the plaintiff's attorney.

[ocr errors][ocr errors]

{42 [Am'd, 18.7.] When defendant must answer before time to appear expires.

A defendant. upon whom the plaintiff has served, with the tas, a copy of the complaint, must serve a copy of his rer or answer upon the plaintiff's attorney, before the ation of the time, within which the summons requires hin If a copy of the complaint is not so served, & notice pearance entitles him only to notice of the subsequent prodings, unless within the same time he demands the service tropy of the complaint as prescribed in section four hundred seventy-nine of this act.

[ocr errors]

Se Co. Proc., § 130 and 143. See §§ 419, 479.

13. [Am'd, 1877.] of service thereof.

Notice of no personal claim; effect

Where a personal claim is not made against a defendant, a Le subscribed by the plaintiff's attorney, setting forth the ral object of the action, a brief description of the property Beted by it, if it affects specific real or personal property, that a personal claim is not made against him, may be ned with the summons. If the defendant so served, unreasondefends the action, costs may be awarded against him. §131.

24. Effect of voluntary appearance.

A voluntary general appearance of the defendant is equivalent Dersonal service of the summons upon him.

part of § 139.

{£25. Summons; when and by whom served. duty.

Sheriff's

The summons may be served by any person, other than a party the action, except where it is otherwise specially prescribed by The plaintiff's attorney may, by an indorsement on the mons, fix a time within which the service thereof be made: in that case, the service cannot be made afterards Where a summons is delivered for service to the sheriff Le county, wherein the defendant is found, the sheriff must it, and return it, with proof of service, to the plaintiff's rey, with reasonable diligence.

133, am'd. See § 1895.

| 426. [Am'd, 1879.]

How personal service of summons ide upon a natural person. Personal service of the summons upon a defendant, being a al person, must be made by delivering a copy thereof, the State, as follows:

If the defendant is an infant, under the age of fourteen fers to the infant in person, and also to his father, mother or nan; or, if there is none within the State, to the person g the care and control of him, or with whom he resides, or -Shose service he is employed.

[ocr errors]

If the defendant is a person judicially declared to be incomto manage his affairs, in consequence of lunacy, idiocy, habitual drunkenness, and for whom a committee has pointed, to the committee, and also to the defendant in

If the action is against a sheriff. for a cause specified in one hundred and fifty-eight of this act, by delivering it

TITLE III.

General provisions.

Sec. 398. When action deemed to be commenced.

399. Attempt to commence action in a court of record.

400. Id.; in a court not of record.

401. Exception, when defendant is without the State.

402. Id.; when a person entitled, etc., dies before limitation expires.

403. Id.; when a person liable, etc., dies within the State.

404. In suits by aliens, time of disability in case of war to be deducted

405. Provision where judgment has been reversed.

406. Stay by injunction, etc., to be deducted.

407. Certain actions by a principal, for misconduct of an agent, etc.

408. Disability must exist when right acerues.

409. If several disabilities, no limitation until all removed.

410. Provision when the action cannot be maintained without a demand.

411. Provision in case of submission to arbitration.

412. Provision when action is discontinued, etc., after answer.

413. How objection taken, under this chapter.

414. Cases to which this chapter applies.

415. Mode of computing periods of limitation.

§ 398. [Aned, 1877.] When action deemed to be commenced.

An action is commenced against a defendant, within the rieaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest with him.

Co. Proc., 99, am'd.

§ 399. Attempt to commence action in a court of record. An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against each defendant, within the meaning of each provision of this act, which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant, or one of two or more codefendants, who are joint contractors, or otherwise united in interest with him, resides or last resided; or, if the defendant is a corporation, to a like officer of the county, in which it is established by law, or wherein its general business is or was last transacted, or wherein it keeps, or last kept, an office for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the delivery of the summons to an officer must be followed, within sixty days after the expiration of the time limited for the actual commencement of the action, by personal service thereof upon the defendant sought to be charged, or by the first publication of the summons, as against that defendant, pursuant to an order for service upon him iu that manner.

Id., part of § 99, am'd.

$ 400. Id.; in a court not of record.

The last section, excluding the provision requiring a publication or service of the summons within sixty days, applies to an attempt to commence an action, in a court not of record. where the summons is delivered to an officer authorized to serve the same, within the city or town, wherein the person resides or the corporation is located, as specified in that section; provided that actual service thereof is made with due diligence.

*§ 401. [Am'd, 1888, 1896.] Exception, when defendant is without the State.

If, when the cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State. If, after a cause of action has accrued against a person, he departs from the State, and remains continuously absent there from for the space of one year or more, or if, without the knowledge of the person entitled to maintain the action, he resides within the State under a false name, the time of his absence or of such residence within the State under such false name is not a part of the time, limited for the commencement of the action. But this section does not apply, while a designation, made as prescribed in section four hundred and thirty, or in subdivision second of section four hundred and thirty-two, of this act, remains in force. Co. Proc., 100, am'd; L. 1888, ch. 498; L. 1896, ch. 665. In effect Sept. 1, 1896. See ante, § 390.

§ 402. Id.; when a person entitled, etc., dies before limitation expires.

If a person, entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representative, after the expiration of that time, and within one year after his death.

Id., 102, am'd.

§ 403. [Am'd, 1891, 1896.] Id.; when a person liable, dies within the State.

The term of eighteen months after the death, within this state, of a person against whom a cause of action exists, or of a person who shall have died within sixty days after an attempt shall have been made to commence an action against him pursuant to the provisions of section three hundred and ninety-nine of this act, is not a part of the time limited for the commencement of an action against his executor or administrator. If letters testamentary or letters of administration upon his estate are not issued, within this state, at least six months before the expiration of the time to bring the action, as extended by the foregoing provision of this section, the term of one year after such letters are issued is not a part of the time limited for the commencement of such an action. The time during which an action is pending in a court of record between a person or persons and an executor or administrator, wherein the person or persons claim to recover from the executor or administrator any money or other property claimed by said executor or administrator to belong to the estate of the decedent, or is embraced in the inventory of the assets of said decedent's estate, is not a part of the time limited for the commencement of an action against an executor or administrator, for a claim against the estate of the decedent until the final determination of the action brought to recover said or other property claimed by said executor or administrator to belong to said decedent's estate:

1. Where the claim against the estate of the decedent is liquidated by the recovery of a judgment thereon against an executor or administrator in an action in a court of record or under section twenty-seven hundred and eighteen of this code, after trial on the merits.

See ante, § 390.

« ПретходнаНастави »