1862 Territory of Dakota Session Laws/Chapter 8/Title XVIII
TITLE XVIII.
ACTIONS AND PROCEEDINGS IN PARTICULAR CASES.
CHAPTER I.—Actions concerning Real Property.
What to be stated in petition for recovery of real property.Sect. 562. In an action for the recovery of real property, it shall be sufficient, 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 twenty-three, 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.
What shall be sufficient answer.Sect. 563. 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 whole premises, the answer shall describe the particular part for which defence is made.
In an action by tenant in common.Sect. 564. In an action by a tenant in common of real property, against a co-tenant, the plaintiff must state in addition to what is required in the first section of this chapter, that the defendant either denies the plaintiff's right or did some act amounting to such denial.
Verdict and judgement in an action for recovery of real property.Sect. 565. In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was 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.
Defeated party may demand new trial, when.Sect. 566. In an action for the recovery of real property, the party against whom judgment is rendered, may, at any time during 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.
No further trial except on appeal.Sect. 567. No further trial can be had in such action, except upon appeal, unless for good cause shown, as in other actions.
Parties may avail themselves of statutes for relief of land claimants.Sect. 568. The parties in an action for the recovery of property may avail themselves, if entitled thereto, of the relief of the statutes in force for the relief of occupying claimants of land.
If guardian or tenant commit waste.Sect. 569. If a guardian, tenant for life or years, joint tenant, or tenant in common, of real property, commit waste thereon, he is liable to pay three times the damages which have resulted from such waste to the person who is entitled to sue therefor.
Judgement of forfeiture and conviction rendered, when.Sect. 570. Judgment of forfeiture and conviction may be rendered against the defendant, whenever the amount of damages so recovered is more than two thirds the value of the interest such defendant has in the property wasted, and when the action is brought by the person entitled to the reversion.
Person deemed to have committed waste, when.Sect. 571. Any person whose duty it is to prevent waste, and who has not used reasonable care and diligence to prevent it, is deemed to have committed it.
Treble damages in certain cases.Sect. 572. For wilful trespass, injuring any timber, tree, or shrub on the land of another, or in the street or highway in front of another's cultivated ground, yard, or town lot, or on the public grounds of any town, or any land held by this territory, for any purpose whatever, the trespasser shall pay treble damages, at the suit of any person entitled to protect or enjoy the property aforesaid.
Not more than just value recoverable.Sect. 573. Nothing herein contained authorizes the recovery of more than the just value of the timber taken from uncultivated woodland for the repair of a public highway or bridge, upon the land in its immediate neighborhood.
The owner may maintain action, even if there be intervening estate.Sect. 574. The owner of an estate in remainder or reversion, may maintain either of the aforesaid actions for injuries done to the inheritance, notwithstanding any intervening estate for life or years.
Heir may maintain actions, when.Sect. 575. An heir, whether a minor or of full age, may maintain these actions for injuries done in the time of his ancestors, as well as in his own time, unless barred by the statute of limitations.
When lands are sold by virtue of execution, purchaser may maintain action.Sect. 576. Where lands or tenements are sold by virtue of an execution, the purchaser at such sale may maintain his action against any person, for either of the causes above mentioned, occurring or existing after his purchase.
Not intended to interfere with normal husbandry.Sect. 577. This provision is not intended to prevent the person who occupies the lands, in the mean time, from using them in the ordinary course of husbandry, or from using timber, for the purpose of making suitable repairs thereon.
If he use superior timber.Sect. 578. But if, for this purpose, he employ timber superior to that required for this occasion, he will be deemed to have committed waste, and will be liable accordingly.
CHAPTER II.—Actions on Official Securities.
When an officer forfeits his bond, how to be proceeded against.Sect. 579. When an officer, executor, or administrator within this territory, by misconduct or neglect of duty, forfeits his bond or renders his sureties, 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 he may be entitled by reason of the delinquency. The action may be instituted and proceeded in on a certified copy of the bond, which copy shall be furnished by the person holding the original thereof.
One judgement against security does not preclude another action on same.Sect. 580. 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.
CHAPTER III.—Actions for the Partition of Real Property.
Actions for partition of real property.Sect. 581. The provisions of the existing statutes relating to the partition of lands, tenements, and hereditaments, are not affected by this code, and partition may be made under the same, as heretofore, until the legislature shall otherwise provide. The provisions of such statutes shall also apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form.
CHAPTER IV.—Proceedings upon Mandamus.
Writ of mandamus issued to whom, and its effect.Sect. 582. 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.
Not issued when there is other remedy.Sect. 583. This writ may not be issued in any case, where there is a plain and adequate remedy in the ordinary course of the law. It may issue on the information of the party beneficially interested.
Alternative or peremptory writ.Sect. 584. 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 to 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 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.
Which issues first.Sect. 585. 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.
Motion for writ, how made.Sect. 586. The motion for the writ must be made upon affidavit, 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.
Allowance indorsed, served personally. Contempt.Sect. 587. The allowance of the writ must be indorsed thereon, signed by a 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.
When and how answered.Sect. 588. On the return day of the alternative writ, or such further day, as the court may allow, the party, on whom the writ shall have been served, may show cause by answer made, in the same manner as an answer to a petition in a civil action.
If no answer be made. If answer made.Sect. 589. If no answer be made, a peremptory mandamus must be allowed against the defendant. If an answer be made containing 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 objection to its sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.
No other pleading allowed.Sect. 590. No other pleading or written allegation is allowed, 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 had in the same manner as in a civil action.
If judgement is given for plaintiff.Sect. 591. If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the court, or a jury, or by referees, in a civil action, and costs; and a peremptory mandamus shall, also, be granted to him, without delay.
A recovery, bar to another action.Sect. 592. A recovery of damages by virtue of this chapter, against a party who shall have made a return to a writ of mandamus, is a bar to any other action against the same party, for the making of such return.
If public officer, body or board receiving mandamus, neglect duty.Sect. 593. Whenever a peremptory mandamus is directed to 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 county, where the duty ought to have been performed, for the use of common schools; 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.