whether he makes such demand of the defendant may be read on the hearing of the motion.

action.

SEC. 38. All persons having an interest in the subject of the action, Who may be and in obtaining the relief demanded, may be joined as plaintiffs, made parties to except as in this chapter otherwise provided. 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 the complete determination or settlement of the question involved therein.

Who must be

action.

SEC. 39. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any made parties to one who should have been joined can not be obtained he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or joint interest of many persons, or when the parties are numerous, and it may be impracticable to bring them all into court, one or more may sue or defend for the benefit of the whole.

SEC. 40. The court may determine any controversy between parties When court to before it when it can be done without prejudice to the rights of others, decide controversy or by saving their rights; but when a complete determination of the or order other parcontroversy can not be had without the presence of other parties, the court shall cause them to be brought in.

ties brought in.

Who may inter

SEC. 41. Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter of litigation, in the suc- vene. cess of either of the parties, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint setting forth the ground upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared, who may answer or demur to it as if it were an original complaint.

44. Summons to contain notice of what 50. When the summons is returned not

SEC. 42. Civil actions shall be commenced by filing a complaint with How actions the clerk of the court, and the provisions of section fourteen shall only commenced. apply to this subject for the purpose of determining whether an action has been commenced within the time limited by this title. At any time after the action is commenced the plaintiff may cause a summons to be served on the defendant.

Requisites of

SEC. 43. The summons shall contain the name of the court in which the complaint is filed, the names of the parties to the action, and the summons. title thereof. It shall be issued by the court or the clerk thereof and directed to the defendant, and shall require him to appear and answer the complaint as in this section provided, or judgment for want thereof

will be taken against him. The defendant shall appear and answer the complaint within thirty days from the date of the service.

Summons to SEC. 44. There shall also be inserted in the summons a notice in subcontain notice of stance as follows: what plaintiff demands.

By whom served

when returned.

First. In any action for the recovery of money or damages only that the plaintiff will take judgment for a sum specified therein if the defendant fail to answer the complaint;

Second. In other actions, that if the defendant fail to answer the complaint the plaintiff will apply to the court for the relief demanded therein.

SEC. 45. The summons shall be served by the marshal or any deputy, and where and or by a person specially appointed by him or by the court or judge thereof. The summons shall be returned to the court or clerk thereof with whom the complaint is filed within forty days after its delivery to the officer or other person for service, with proof of such service or that the defendant can not be found. The marshal or other person to whom the summons is delivered shall indorse thereon the date of such delivery.

How served and upon whom.

When order for publication be made.

SEC. 46. The summons shall be served by delivering a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent, or attorney, or by the clerk of the court as follows: First. If the action be against a private corporation, to the president or other head of the corporation, secretary, cashier, or managing agent, or, in case none of the officers of the corporation above named shall reside or have an office in the district, then to any clerk or agent of such corporation who may reside or be found in the district, or if no such officer be found, then by leaving a copy thereof at the residence or usual place of abode of such clerk or agent;

Second. If against any incorporated town, school district, or other public corporation in the district, to the clerk of such incorporated town, school district, or other public corporation;

Third. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian, or if there be none within the district, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed;

Fourth. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and if a guardian has been appointed, to such guardian and to the defendant personally;

Fifth. In all cases, to the defendant personally, or if he be not found, to some person of the family above the age of fourteen years at the dwelling house or usual place of abode of the defendant.

SEC. 47. When service of the summons can not be made as prescribed may in the last preceding section, and the defendant after due diligence can not be found within the district, and when that fact appears by affidavit to the satisfaction of the court or judge thereof, or justice of the peace in an action in a justice's court, and it also appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real or personal property in the district, the court or judge thereof, or a justice of the peace in an action in a justice's court, shall grant an order that the service be made by publication of the summons in either of the following cases:

First. When the defendant is a foreign corporation, and has property within the district, or the cause of action arose therein;

Second. When the defendant, being a resident of the district, has departed therefrom with intent to defraud his creditors or to avoid the service of the summons, or with like intent keeps himself concealed therein, or has departed from the district and remained absent therefrom six consecutive weeks;

Third. When the defendant is not a resident of the district, but has property therein, and the court has jurisdiction of the subject of the action;

Fourth. When an action is to have a marriage declared void, or for a divorce in the cases prescribed by law;

Fifth. When the subject of the action is personal property in the district, and the defendant has a claim or lien, of interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein;

Sixth. When the action is to foreclose, satisfy, or redeem from a mortgage, or to enforce a lien of any kind on real estate in said district, or satisfy or redeem from the same. The summons published shall contain the name of the court and the title of the cause, à succinct statement of the relief demanded, the date of the order for service by publication, and the time within which the defendant is required to answer the complaint.

of the district.

SEC. 48. The order shall direct the publication to be made in a news- Publication, paper to be designated by the court or judge or clerk as the most likely how made; perto give notice to the person to be served, and for such length of time sonal service out as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge shall also direct a copy of the summons and complaint to be forthwith deposited in the postoffice, directed to the defendant at his place of residence, unless it shall appear that such residence is neither known to the party making the application nor can with reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint out of the district shall be equivalent to publication and deposit in the post-office. In either case, the defendant shall appear and answer within thirty days after the completion of such period of publication. In case of personal service out of the district, the summons shall specify the time prescribed in the order for publication.

SEC. 49. The defendant against whom publication is ordered, or his When defendpersonal representatives, on application and sufficient cause shown, at ant may be allowany time before judgment shall be allowed to defend the action; and ed to defend after the defendant against whom publication is ordered, or his representa- judgment. tives, may in like manner, upon good cause shown, and upon such terms as may be proper, be allowed to defend after judgment and within one year after the entry of such judgment on such terms as may be just; and if the defense be successful, and the judgment or any part thereof have been collected or otherwise enforced, such restitution may thereupon be compelled as the court shall direct. But the title to property sold upon execution issued on such judgment to a purchaser in good faith shall not be thereby affected.

SEC. 50. Whenever it shall appear by the return of the marshal, his When the sumdeputy, or the person appointed to serve a summons that the defend- mons is returned ant is not found, the plaintiff may deliver another summons to be not found, how served, and so on, until service be had; or the plaintiff may proceed ceed. plaintiff may proby publication, as in this chapter provided, at his election. SEC. 51. When the action is against two or more defendants, and the summons is served on one or more but not all of them, the plaintiff may proceed as follows:

First. If the action be against defendants jointly indebted upon a 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 defendant served, and if they are subject to arrest, against the persons of the defendants served; or,

When the summons not served on all the defendants.

Proof of service of summons.

When court ac

Second. If the action be against the defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants; or,

Third. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them alone.

SEC. 52. Proof of the service of the summons, or of the deposit thereof in the post-office, shall be as follows:

First. If the service or deposit in the post-office be by the marshal or his deputy, the certificate of such officer; or,

Second. If by any other person, his affidavit thereof; or,

Third. In case of publication, the affidavit of the printer or his foreman, or his principal clerk, showing the same; or,

Fourth. The written admission of the defendant in case of service otherwise than by publication; the certificate, affidavit, or admission must state the time and place of service; and in case of deposit in the post-office, the time and place thereof.

SEC. 53. From the time of the service of the summons or the allowquires jurisdiction. ance of a provisional remedy the court shall be deemed to have acquired jurisdiction and to have control of all the subsequent proceedings. A voluntary appearance of the defendant shall be equivalent to personal service of the summons upon him.

CHAPTER FIVE.

OF THE PLEADINGS.

Sec.

! Sec.

54. Forms of pleadings, how determined.

55. Pleadings on the part of plaintiff and defendant.

SEC. 54. All the forms of pleading heretofore existing in actions at law and suits in equity and in admiralty are abolished, and hereafter the forms of pleading in courts of record and the rules by which the sufficiency of the pleadings is to be determined shall be those prescribed by this code.

SEC. 55. The only pleadings on the part of the plaintiff shall be--
First. The complaint;

Second. The demurrer; or,

Third. The reply.

And on the part of the defendant-
First. The demurrer; or,

Second. The answer.

CHAPTER SIX.

OF THE COMPLAINT.

First pleading to be complaint.

What complaint

to contain.

Sec.

56. First pleading to be complaint.

Sec.

57. What complaint to contain.

SEC. 56. The first pleading on the part of the plaintiff shall be the complaint.

SEC. 57. The complaint shall contain

First. The title of the cause, specifying the name of the court and names of the parties to the action, plaintiff and defendant.

Second. A plain and concise statement of the facts constituting the cause of action, without unnecessary repetition.

Third. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded the amount thereof shall be stated.

When defendant

SEC. 58. The defendant may demur to the complaint within the time required by law to appear and answer, when it appears upon the face may demur, and thereof, either

First. That the court has no jurisdiction of the person of the defendant or the subject of the action; or,

Second. That the plaintiff has no legal capacity to sue; or, Third. That there is another action pendíng between the same parties for the same cause; or,

Fourth. That there is a defect of parties plaintiff or defendant; or, Fifth. That several causes of action have been improperly united; or, Sixth. That the complaint does not state facts sufficient to constitute a cause of action; or,

Seventh. That the action has not been commenced within the time limited by this code.

for what.

SEC. 59. The demurrer shall distinctly specify the grounds of objec- Demurrer must tion to the complaint; unless it do so it may be disregarded. It may specify ground of be taken to the whole complaint or to any of the alleged causes of objection.

action stated therein.

amended.

SEC. 60. If the complaint be amended, a copy thereof shall be served How to proceed on the defendant or his attorney, and the defendant shall answer the if complaint be same within such time as may be prescribed by the court, and if he omit to do so the plaintiff may proceed to obtain judgment as in other cases of failure to answer.

SEC. 61. When any of the matters enumerated in section fifty-eight Objection when do not appear upon the face of the complaint the objection may be taken by answer. taken by answer.

SEC. 62. If no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action.

CHAPTER EIGHT.

Objection when deemed waived.

SEC. 63. The answer of the defendant shall contain

What the an

First. A general of specific denial of each material allegation of the swer shall contain. complaint controverted by the defendant, or of any knowledge or infor

mation thereof sufficient to form a belief.

Second. A statement of any new matter constituting a defense or counterclaim in ordinary and concise language without repetition.

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