1862 Territory of Dakota Session Laws/Chapter 8/Title III
TITLE III.
PARTIES TO CIVIL ACTIONS.
Actions in name of real party.Sect. 22. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section twenty-five.
In case of assignment of thing in action.Sect. 23. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence now allowed; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith and upon good consideration, before due.
Exceptions to sect. 22.Sect. 24. An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.
Where a married woman is a party.Sect. 25. Where a married woman is a party, her husband must be joined with her; except when the action concerns her separate property, she may sue without her husband, by her next friend. When the action is between herself and her husband, she may sue or be sued alone; but in every such action, other than for a divorce or alimony, she shall prosecute and defend by her next friend.
If a husband and wife together.Sect. 26. If a husband and wife be sued together, the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also.
In an infant.Sect. 27. The action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend, the court has power to dismiss it, if it is not for the benefit of the infant; or, to substitute the guardian of the infant, or any person as the next friend.
Guardian or friend liable for costs.Sect. 28. The guardian or the next friend is liable for the costs of the action brought by him, and, when he is insolvent, the court may require security for costs. Either may be a witness in an action brought by him.
The defense of an infant.Sect. 29. The defence of an infant must be by a guardian for the suit, who may be appointed by the court, in which the action is prosecuted, or by a judge thereof, or by a probate or county judge. The appointment cannot be made until after service of the summons in the action, as directed by this code.
Guardian for suit, how appointed.Sect. 30. The appointment may be made upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the return of the summons. If he be under the age of fourteen, or neglect to so apply, the appointment may be made upon the application of any friend of the infant, or on that of the plaintiff in the action.
All persons interested may join suit as plaintiffs.Sect. 31. All persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.
Any person interested may be made defendant.Sect. 32. 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.
Parties united in interest must be joined.Sect. 33. Of the parties to the action, those who are united in interest must be joined, as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition.
When parties are numerous, one may sue or defend for all.Sect. 34. When the question is one of a common or general interest of many persons; or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.
Persons severally liable included in same action.Sect. 35. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.
Action does not abate by death, marriage, &c.Sect. 36. An action does not abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, during its pendency, if the cause of action survive or continue. In the case of the marriage of female party, the fact being suggested on the record, the husband may be made a party with his wife; and in the case of the death or other disability of a party, the court may allow the action to continue 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.
Court may determine, when.Sect. 37. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.
When persons interested made parties.Sect. 38. When, in an action for the recovery of real or personal property, any person having an interest in the property, applies to be made a party, the court may order it to be done.
When court may make order for delivery, &c., of subject of action, upon claim of third person.Sect. 39. Upon the affidavit of a defendant before answer in an action upon contract, or for the recovery of personal property, that some third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the same, as the court may direct, the court may make an order for the safe keeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his claim against the defendant. If such third party, being served with a copy of the order, by the sheriff or such other person as the court may direct, fail to appear, the court may declare him barred of all claim in respect to the subject of the action, against the defendant therein. If such third party appear, be shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of court for the payment, deposit, or delivery thereof.
Provisions of last section otherwise applicable.Sect. 40. The provisions of the last section shall be applicable to an action brought against a sheriff, or other officer, for the recovery of personal property taken by him under execution, or for the proceeds of such property so taken and sold by him; and the defendant in such action shall be entitled to the benefit of those provisions against the party, in whose favor execution issued, upon exhibiting to the court the process under which he acted, with his affidavit that the property, for the recovery of which, or its proceeds, the action is brought, was taken under such process.
Change in parties, how made.Sect. 41. In an action against a sheriff, or other officer, for the recovery of property taken under an execution, and replevied by the plaintiff in such action, the court may, upon application of the defendant and the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the costs being given.