1862 Territory of Dakota Session Laws/Chapter 8/Title V
TITLE V.
COMMENCEMENT OF A CIVIL ACTION.
Chapter I. Manner of commencing Civil Actions.—II. Services of Summons.
CHAPTER I.—Manner of commencing Civil Actions.
How commenced.Sect. 52. A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.
Plaintiff file a precipe.Sect. 53. The plaintiff shall also file, with the clerk of the court, a precipe, stating the names of the parties to the action, and demanding that a summons issue thereon.
The summons.Sect. 54. The summons shall be issued by the clerk, shall 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 of Dakota, ——— county," and it shall be dated the day it is 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 the 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 indorsed 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.
Summons to any other county, when.Sect. 55. Where the action is rightly brought in any county, 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.
Summons, when returnable.Sect. 56. Where the time for bringing parties into court is not fixed by statute, the summons shall be returnable on the first day of the next term after the day of its date. It shall state the day of the month on which it is returnable.
When returned "not summoned."Sect. 57. When a writ is returned "not summoned," other writs 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 II.—Service of Summons.—Actual Service.
Summons, how served.Sect. 58. The summons shall be served by the officer to whom it is directed, who shall indorse on the original writ the time and manner of service. It may also be 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 indorsed on the writ. When the writ is 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.
Same.Sect. 59. The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day.
Return state what.Sect. 60. In all cases the return must state the time and manner of service.
Returned at the time stated.Sect. 61. The officer to whom the summons is directed must return the same at the time therein stated.
Acknowledgement or appearance equivalent to service.Sect. 62. An acknowledgment on the back of the summons, or the voluntary appearance of a defendant, is equivalent to a service.
Summons against corporation, how served.Sect. 63. 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 last usual place of business of such corporation.
Against an agency.Sect. 64. 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.
Against agent of foreign corporation.Sect. 65. Where the defendant is a foreign corporation, having a managing agent in this territory, the service may be upon such agent.
Against a minor.Sect. 66. 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 minor be more than 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.
CONSTRUCTIVE SERVICE.
Service by publication, in what cases.Sect. 67. Service may be made by publication in either of the following cases: In actions brought under the forty-second and forty-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 of 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 property in this territory, where any defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partially 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 like intent.
Affidavit necessary that other service cannot be made.Sect. 68. Before the service can be made by publication, an affidavit must be filed, that service of a summons cannot be made 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.
Publication, how made.Sect. 69. The publication must be made four consecutive weeks, 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.
Publication, when complete, and how proved.Sect. 70. Service by publication shall be deemed complete, when it shall have been made in the manner and for the time prescribed in the preceding section; and such service shall be proved by the affidavit of the printer, or his foreman or principal clerk, or other person knowing the same.
Personal service may be made out of territory.Sect. 71. In all cases where service may be made by publication, personal service of a copy of the summons and complaint may be made out of the territory.
When and how a case may be opened after judgement, in case of publication only.Sect. 72. A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within five years after the date of publication 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 intentions 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 proceeding under this section, nor shall they affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a 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.
In case of unknown heirs or devisees.Sect. 73. 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 four weeks.
In case one only of several defendants is served.Sect. 74. 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: 1. If the action be against defendants jointly indebted, upon contract, he may proceed against the defendants served, unless the court otherwise direct. 2. 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.
Action pending, and third persons excluded, when.Sect. 75. 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.
When part of property is situated in another county.Sect. 76. When any part of the 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 judgment in such action must be recorded in the register's office of such other county or counties, before it shall operate therein as a 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.