A Treatise on Code Pleading and Practice: Also Containing 1900 Forms Adapted to Practice in California, Alaska, Arizona, Idaho, Montana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Other Code States, Volum 1

William Angus Sutherland

Bancroft-Whitney, 1910

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CHAPTER SECTIONS FORMS I Rights and Remedies	1

Parties to Civil Actions 710	7

Cause of action necessary	10

Real Party in Interest 1115	11

Parties PlaintiffActions Ex Contractu 1620	16

FORMS OF DEMURRER	17

PARTIES PLAINTIFFACTIONS EX DELICTO Section 21 In general 22 For injuries to real property	20

Parties PlaintiffActions Ex Delicto 2130	21

Amendments 785859 248265	519

Arbitration and award	520

Wifes separate estate	521

Husband and wifeImpotence	522

FORMS FOR ENLARGING TIME TO PLEAD 869 Form 266 Affidavit for extension of time to plead pending delivery of copy of account 870 For...	523

Form 268 Notice of motion for extension of time to answer	524

Execution 20312117 530554	526

The true practice	527

For injuries to personal property	23

In ejeetment	24

For injuries to the person	25

Trustee	26

Injuries to married woman	27

Sole traders	28

For injuries to minor child or servant	29

For seduction	30

CHAPTER VI	32

Promissory Notes 53575582 15411599	33

For breach of contract 35 Unnecessary parties 36 Objection to nonjoinder 37 Waiver of defects in parties defendant	34

Actions against executors and administrators	35

Foreclosure of mortgages and mechanics liens	39

Action for fraud	40

In ejectment	41

Parties Defendant 3157	42

Actions by or against infants 44 For infringement of patent	44

Mandamus	45

Water and watercourses	46

Injunction	47

Injuries caused by negligence	48

Action for legacy charged on land	49

Actions against partners	50

Actions against principal and agent	51

Actions for trespass	52

Actions against trustees	53

Persons severally liable on same obligation or instrumento	54

On judgment	55

Joinder of parties not bound	56

Joinder of corporation	57

Substitution of Parties and Pleadings 5882 114	58

Form 3 Affidavit therefor 72 Form 4 Order thereon 73 Form 5 Affidavit for substitution by assignee of plaintiff	59

Form 6 Affidavit by husband after marriage of female plaintiff to continue cause in joint names of husband and wife 75 Form 7 Order by consent su...	60

Form 8 Affidavit by defendant to have plaintiffs executor substituted 77 Form 9 Notice of motion on behalf of defendant for substitu tion of plaintiff...	61

Form 10 Order of substitution 79 Form 11 Novation by substitution of new creditor 80 Form 12 The same in case of a promise to apply indebtedness...	62

Form 13 Order for revivor and continuance	63

Form 14 Affidavit for supplying the place of a lost pleading	64

General Rules of Pleadings 8386	65

CHAPTER VIII	70

Forms of Actions 8793	71

Form of actions abolished 88 Mode of stating factsLogical order	72

Allegation of facts by direct averment	73

Certainty and clearness of allegations 91 Allegation of facts in ordinary and concise language 92 Language	74

Errors in writing grammar or spelling	76

Allegations 94100	78

What are conclusions of lawExamples	79

Examples of conclusions of	80

What facts should be allegedEssential facts	82

Section	83

Object of pleadings	84

Immaterial irrelevant and redundant matter	85

CHAPTER XI	87

Formal Parts of Pleadings 101149 1550	88

Form 24 The sameMinors estate 124 Form 25 The sameInsane persons estate 125 Form 26 Caption of papers used in insolvency proceedings	97

Form 27 Caption of papers on habeas corpus 127 Form 28 Caption of papers on disbarment of an attorney 128 Form 29 Caption of papers used in ot...	98

Form 32 CommencementBy one suing for himself and others 132 Form 33 Conclusion of complaint 133 Form 34 Form of complaintComplete 134 ...	99

Form 36 Formal parts of defendants pleadingsCommence ment of demurrer 136 Form 37 Form of answer 137 Form 38 Commencement of answer b...	100

Form 39 Commencement of answer by an infant 139 Form 40 Commencement of answer by an insane person 140 Form 41 Commencement of answ...	101

Caption	102

Name of court	103

Verification of Pleadings 150183 5164	104

Names of parties	105

Mistakes in names	106

Fictitious names	107

Suits by or against corporations	108

Commencement	109

Prayer	110

Prayer for specific and general relief	111

Prayer for legal and equitable relief	112

Inconsistent prayer	113

Form 15 CaptionTitle of cause	114

The Complaint 184 185	115

Form 17 Title of cause by or against corporation	116

Form 18 The state on the relation of an individual	117

Form 19 By guardian ad litem	118

Form 20 By assignee for creditors	119

ComplaintStatement of Cause of Action 186188	120

Form 22 By an officer of the state	121

ComplaintJoinder of Causes 189217 65	124

Separate statement of causes of action	128

Accounts 195 Causes of action may be united	130

Claims in two capacities	131

Classcommon counts 198 Contracts	132

Contract of partners	133

Each cause complete 201 Injuries to the person 202 Injuries to person and property	134

Nuisance 204 Injuries to property	135

Jurisdiction 206 Money counts and warranty 207 Money had 208 Quantum meruit 209 Separate demands 210 Several counts 211 Single cause of ac...	136

Specific performance	137

Specific personal property 214 Specific real property	138

Specific relief 216 Trespass	139

Charter Parties 56645693 16151619	140

ComplaintSplitting of Causes 218222	142

Entire cause of action what is 220 Entirety of cause of action under contract	143

Covenants 57565829 16391659	144

Entirety of cause of action for tort	145

Effect of splitting of cause of action	146

ComplaintRight of Plaintiff and Liabil ity of Defendant 223234	147

Written pleadings	152

Authority to take	153

Verification of complaint	154

In disbarment proceedings	155

In actions and defenses on written instruments	156

Effect of verifying complaint	157

Verification of the answer	158

Answer in condemnation suit	159

Answer in tax suits	160

When verification may be made	161

Form and venue	162

ComplaintAnticipating Defenses 235	163

THE DEMURRER Section 236 Introductory 237 Definition and nature of demurrer	164

Grounds for demurrer	165

Foreclosure of Mortgages on Real Prop erty 58305979 16601686	166

Effects of a demurrer	168

What a demurrer admits	169

Amendment of demurrer 242 When a demurrer lies	170

Form 66 Demurrer to some of several causes of action and to the whole complaint	171

When demurrer will not	173

The sameMotion to strike out 245 Demurrer will not	174

Foreclosure of Chattel Mortgages 59806005 16871691	175

Objections to prayer for relief 247 General demurrer	176

Special demurrer	179

Joint demurrer 250 Causes or grounds for demurrer	180

CHAPTER	181

Other action pending	187

Contract and tort	190

Meaning of term sa me transaction	191

Must affect all parties to the action	192

Res adjudicata 317 Securities	205

Services of physician 319 Specific relief 320 Stamp on note 321 Statement of grounds 322 Statue of frauds	206

Statute of limitations	207

Statutory penalty 325 Undertaking on attachment 326 Admissions by demurrer 327 What it admits	208

Foreclosure of Mechanics Lien 60376085 16971701	209

Ambiguity	210

Ejectment	211

Official bond 335 Uncertainty of descriptionConjunctive demurrer 336 The same Agency 337 Defect must be apparent	212

Waiver of objectionsFailure to demur	213

Complaint and demurrer theretoMiscellaneous cases	214

DemurrerMiscellaneous decisions pertaining	216

Sufficiency of complaintMiscellaneous decisions 342 The same Alleging unilateral contract 343 The sameAction for recovery of personal property	217

The sameFailure to aver demurrer 345 The same Action for removing fixtures 346 The same Allegation of damages	218

The same Alleging mutual mistake	219

AssumpsitCommon counts	225

Allegations of promise	226

Allegations of consideration	227

Alleging performance or excusing nonperformance	228

Allegations as to performance where conditions are concurrent	229

Averment of breach	230

Allegations of special damages	231

CHAPTER XXI	233

Answer under the codes	234

Objections not appearing on face of complaint	235

The Demurrer 236250	236

Mode of pleading defense	237

Denials in general	240

Statute or writing 392 Defense of insurance company	242

FORMS OF ANSWERS 393 Form 88 Formal parts of answerGeneral form 394 Form 89 Interposing both denial and new matter in defense	243

Form 90 Denial by assignee 396 Form 91 Specific denial 397 Form 92 General outline form of answer denial justification and mitigation Libel	244

Form 95 The sameBy defendant sued by wrong name 401 Form 96 The sameBy infant	245

Form 97 The sameBy lunatic 403 Form 98 The same By husband and wife answering jointly 404 Form 99 Answer alleging partial defense 405 Form...	246

CHAPTER XXII	247

Definition of general denial	248

Several causes of action	252

Time for plaintiff to demur	253

Plaintiffs grounds for demurrer	254

Want of jurisdictionDemurrer	255

The sameSeveral causes of action	256

DefensesGeneral Denial 407456 102128	257

The sameCorporation	259

The same Defect apparent	260

The sameFor state	261

The sameGuardian	262

The sameTrustee	263

Objection waived	264

Receiver	265

265a Special administrator 266 Capacity to	266

The sameForeclosure	268

Former adjudication	269

Other action pendingQuieting title	270

The sameJudgment	271

The sameGround	272

Defect of parties	273

Nonjoinder of parties	274

The same Objection how and when taken	275

The sameStatement	276

Misjoinder of executor	277

DefensesNew Matter 457476 129131	278

Ground for demurrer	279

Too many plaintiffs	280

Actions improperly united	281

Actions not separately stated	282

The sameConversion	283

The sameWhen demurrer lies	284

The same Continued	285

The sameWaiver of objection	286

Fraudulent conveyance	287

287a Mandamus and injunction 288 Husband and wife	288

Injuries to person and property	289

290 Joint demurrer	290

MisjoinderObjections when taken	291

Penalties	292

Recognizance	293

Sheriff action against	294

Trespass	295

Insufficient facts	296

The sameAttachment	297

Bill of exchange	298

Cloud on title	299

Date illegal	300

Insufficient facts	301

The sameDefective complaint	302

Defect of parties	303

Definition of terms	304

Insufficient factsDemurrer how taken	305

UncertaintyDivorce	306

The sameEffect	307

The sameLaches	308

The sameExhibits	309

Guaranty	310

Inferential statement	311

Sale Under Trust Deed 61076125	312

Contempt of Court	317

Misnomer must be pleaded 526 Nonjoinder	323

Pleas	324

PaymentHow and when must be pleaded	325

DefensesSpecial Pleas 477625 132196	328

Statute of frauds	331

Ultra vires	332

Limitations of action 536 Statute of limitations	333

LimitationsConstruction of answer 538 Statute of limitationsConstrued	334

LimitationsEssential allegations	335

LimitationsStatutes of different states	337

LimitationsSuspension of remedy 542 When action commenced 543 When cause of action accrues 544 Statute of limitationsContinued	338

TenderHow made and effect	340

TenderIssue joined 547 Real party in interestAllegations	341

AssigneesSubstitution	342

Setoff 550 Consolidated corporation	343

Quiet Title 61976268 17191731	344

Municipal corporations	345

Dissolution of corporation 554 CorporationsEstoppel 555 EstoppelHow pleaded	347

The same Preemption claimConclusion of	348

The sameAction to determine right to patent	349

The sameAction to annul homestead	350

The sameAction against garnishee	351

The same Specific performance	352

The sameAverments probate of willOwnership	353

The same Dismissal for want of parties	354

CHAPTER SECTIONS FORMS XL Service of Summons by Publication 10701090 355365	355

The same Miningclaim contest	356

The same Action to contest right to purchase state lands	357

The sameInjunctionInterference with franchise	358

The sameWill contest	359

The same Pertaining to trusts	360

Defects in complaint cured by answer	361

Standing on demurrer	362

SummonsReturn and Proof of Service 10911099 366	366

Form 187 Pendency of partnership cause in answer to partition suit 617 Form 188 Estoppel 618 Form 189 Estoppel by former judgmentPleading for...	367

Appearance 11011104	368

Lis Pendens 11051123 369379	369

Form 194 Want of jurisdiction of the person 624 Form 195 The sameBy foreign corporation 625 Form 196 Want of jurisdiction of the subject	370

CHAPTER XXV	371

Essential features of the counterclaim	372

Must be an existing claim	373

Assignment of ground of claim	374

Mutuality of demands	375

Unliquidated demands	376

Equitable defenses and setoff	377

Same transaction	378

Issues 11241129	380

Tort as subject of counterclaim	381

Contracts and torts	383

Construction of statute	384

Counterclaims arising upon contract	385

Jurisdiction	386

Necessity to plead	387

Form of pleading	388

Designation of pleading 643 Answer or demurrer	390

Trial by the Court 11551195 391398	391

Form 198 Defenses and counterclaims pleaded together 646 Form 199 Plaintiffs reply 647 Form 200 Counterclaim by way of setoff against plaintiffs...	392

Form 201 Another action pending 649 Form 202 Counterclaim for breach of warranty	393

Form 203 Equitable counterclaim for specific performance	394

Form 204 Counterclaim for breach of warranty 652 Form 205 Payment in part and deficiency in the goods exceed ing the balance with counterclaim...	395

Form 206 Statement admitting counterclaim	396

CHAPTER XXVI	397

Against whom relief may be sought	398

Trial by Jury 11961287 399412	399

Dismissal of complaint 658 Allegations	401

Counterclaim 626654 197207	403

FORMS OF CROSSCOMPLAINT 660 Form 207 By defendant outline form 661 Form 208 Crosscomplaint for divorce for plaintiffs adultery 662 Fo...	404

Several Defenses 663678 210212	405

What answer waives	406

Crosscomplaint and counterclaim 667 In an action for conversion	407

Commencement and conclusion 669 Each defense must be complete	408

What evidence is admissible	409

When general denial is allowable	410

Partial denial	411

Denial by articles	412

Trial by Referee 12881344 413441	413

Defective denials	414

DefensesAffidavit of Merits 679 680	415

Denial of legal conclusions	416

Negative pregnant	417

Negative pregnantContinued	418

Intervention Interpleader etc 681722 213236	419

Immaterial allegations	420

Attachment	421

Sham matter	422

Contract	423

The sameDemand	424

Denial of fraud	425

Judgment on answer	426

Admissions in the answer	427

Admissions by failure to deny	428

Answer not evidence	429

Verification of answer	430

Form 217 Affidavit where action is brought to recover specific personal property 704 Form 218 Notice of motion to allow party to interplead	431

Ejectment 62696452 17321751	432

Form 221 Notice of motion to make party defendant 708 Form 222 Order making third person a party defendant	433

Form 223 Petition for intervention by third person whose prop erty is attached 710 Form 224 Petition for intervention in replevin	434

Form 225 Petition by owner of chattels to intervene in replevin 712 Form 226 Order to show cause why petition for intervention should not be grant...	435

Form 227 Petition of intervening creditor to set aside prior attachment	436

Form 228 Order of hearing of said petition 715 Form 229 Order vacating attachment	437

Form 230 Order awarding issues on said petition 717 Form 231 Garnishees answer by way of interpleader	438

Form 232 To obtain interpleader in equity	439

Injunction	440

Form 234 The same where the third party claims a part only of the property 721 Form 235 Order of interpleader	441

Exceptions 13451360	442

Form 164	444

Replication 723772 237247	457

Form 240 Special denial 766 Form 241 Reply interposing both denial and new matter 767 Form 242 Reply of statute of limitations 768 Form 243 D...	458

Form 245 Order for judgment for want of reply	459

Pleas in abatement	460

Supplemental Pleadings 7737842 247a247e	461

Waiver by pleading to merits	462

Judgment by Default 14091446 463467	463

Effect of special pleas	464

Matter in a voidance	465

Joinder of defenses	466

Denial on information and belief	467

Judgment on Pleadings 14471457	468

Judgment by Confession 14581474 469	469

The sameJudgment	470

Judgment on Dismissal and Nonsuit 14751493	471

Vacating Judgment 15351545 472	472

Form of denial for want of information or belief	473

New Trial in General 15461552	474

Form 130 Denial on information and belief	475

Form 131 Denial of knowledge sufficient to form a belief	476

Manner of amending 793 Amendments at trial	478

Another action pendingForeign suits	479

The sameIdentity of cause and parties	480

Form 102 General denial 431a Form 103 General denial of one of several causes of action 432 Form 104 General denial in replevin 433 Form 105 ...	481

Equitable defense and how pleaded	482

AnswerVariance	483

Appeal from the Superior Courts to the Supreme Court 16751740	484

AwardPerformance	485

BankruptcyEssential averments	486

Appeal from the Superior Courts to the Supreme Court in Probate and Other Proceedings 17411746	487

CompromisePleadings	488

Debt not	489

AbatementWhen does not abate	490

AbatementDeath of sole plaintiff	491

Abatement Death of sole defendant	492

Perfecting an Appeal 17471802 493501	493

AbatementDeath of husband	494

593	495

AbatementDeath of wife 1	496

AbatementDeath before trial	497

AbatementDeath before argument	498

AbatementDeath after verdict	499

AbatementDeath before or after judgment	500

Death pending supplementary proceedings	501

Statement on Appeal 18031822	502

AbatementParty civilly dead	503

AbatementSuggestion of death	504

Substitution of party and revivor	505

Transcript on Appeal 18451867 506	506

Dismissal of suit	507

Errors Considered on Appeal 18861916	508

Appeals from Justices Courts 19621992 509515	509

Former judgmentParties	510

Foreign adjudicationEssential allegations	511

Former judgmentOffer of testimony	512

Former judgmentWhen a	513

Former judgmentWhen not a	514

Former judgmentWhen an estoppel	515

Certiorari or Writ of Review 19932030 516529	516

FraudEssential allegations	517

Wife as plaintiffEffect of divorce	518

Form 274 Order allowing party to enter for survey 916 Form 275 Notice requiring security for costs	543

Form 276 Notice of application to perpetuate testimony 918 Form 277 Notice of perpetuation of testimony as against all persons to be given by com...	544

Form 278 Allegation of waiver of demand and notice before or at maturity 920 Form 279 Notice of acceptance of order to allow judgment 921 For...	545

Form 281 Judgment thereon 923 Form 282 Notice of acceptance of offer to liquidate damages 924 Form 283 Judgment after trial of appeal from aw...	546

Form 284 Notice of application for additional security	547

Form 285 Order on application for guardian ad litem	548

Form 286 Notice of hearing or trial by party 928 Form 287 Notice of bona fide purchaser	549

Notices Affidavits and Orders in General 874967 271326	550

Form 291 Waiver of notice of subsequent proceedings 933 Form 292 Notice for special purpose only 934 Form 293 The same with motion to set asi...	551

Form 294 Notice of motion by plaintiff for judgment on the pleadings 936 Form 295 Notice of motion for dismissal	552

Form 296 Notice of motion to sue on judgment in the same court 938 Form 297 Notice of motion on petition for leave to receiver 939 Form 298 Or...	553

Form 299 Order ting leave to bring action upon the bond of an executor administrator testamentary 1 sue a or 1 trustee 941 Form 300 Notice of moti...	554

Proceedings Supplementary to Execution 21182147 555570	555

Form 303 Affidavit for same 945 Form 304 Order requiring election	556

Form 305 Notice of motion to strike out answer 947 Form 306 Affidavit to falsity of answer	557

Form 307 Corroborative allidavit 949 Form 308 Order thereon 950 Form 309 Notice of motion to strike out irrelevant redundant or scandalous matter	558

Form 310 Notice of motion to substitute officers successor 952 Form 311 Affidavit therefor	559

Form 312 Order thereon 954 Form 313 Notice of motion by plaintiff to revive action against personal representatives of deceased defendaut 955 For...	560

Service of notice 877 Appearance	561

Form 317 The same by two or more affiants 959 Form 318 Affidavit on which to move for security of costs 960 Form 319 Affidavit to obtain securi...	562

Form 320 Afidavit for security when plaintiff or sureties be come nonresident after action brought 962 Form 321 Affidavit to obtain stay of proceedi...	563

Form 322 Order staying proceedings on foregoing affidavit 964 Form 323 Order allowing amended pleading	564

Form 324 Order for inspection and copies	565

Form 325 Order to furnish bill of particulars 967 Form 326 Order for further bill of particulars	566

Form 138 Arbitration and award	567

Form 139 Bankruptcy	568

Limited jurisdictionProbate 971 Limited jurisdiction 972 Powers of courts at chambers	569

Concurrent jurisdiction	570

Creditors Suits 21482225 571595	571

Jurisdiction of state courts	572

Extraterritorial jurisdiction of state courts	574

Jurisdiction determined by amount in controversy	576

In justices courts	579

Justice courtPresumption of jurisdiction 980 Justice courtActions affecting real property	580

Forcible Entry and Unlawful Detainer 64536532 17521763	581

CHAPTER XXXVI	582

1	592

Grounds for change	593

i for change	594

Demand for change	595

613	596

Affidavit of merits	597

Contents of affidavit stating grounds	598

Affidavit on ground of disqualification of judge 998 Affidavit resisting motion for change	600

Hearing of motion	601

Effect of motion on courts power 1001 Mandamus to compel hearing 1002 Appeal from order	603

Jurisdiction 968981	604

Form 329 Demand for change by defendants attorney com bined with notice of retainer 1006 Form 330 Notice of motion for change 1007 Form 33...	605

Form 332 Statement of groundnot the proper county from situation of subject matter	606

Form 333 The sameNot the county where cause of action arose 1010 Form 334 Affidavit on the ground of nonresidence 1011 Form 335 Affidavit o...	607

Form 337 Affidavit on the ground of disqualification of the judge 1014 Form 338 Affidavit resisting motion for change	608

Form 339 Order to show cause with stay of proceedings 1016 Form 340 Order changing venue on judges own motion 1017 Form 341 Order denyin...	609

Form 342 Order granting change of place of trial 1019 Form 343 ºrder to transfer cause to another court on account of disability of judge	610

Venue 982989	611

Right of removal 1023 Party entitled to removal	612

Discovery or Inspection of Books Docu ments etc 22772295 614	614

What causes are removable	615

Items of Account 22962308 616620	616

Removal where federal question involved	617

Right of removalHow determined	619

Waiver of right to remove 1029 Petition for removal	620

Arbitration and Award 23092344 621637	621

Petitions When to be made	622

Notice of application 1033 Bond and order	623

FORMS FOR CHANGE TO FEDERAL COURT 1 1034 Form 344 Entry of appearance 1035 Form 345 Petition for transfer from state court to a circ...	624

court of the United States 1036 Form 346 The sameOn ground of prejudice or local influence under act of 1887	625

Form 347 Affidavit of prejudice or local influence to accompany the foregoing petition 1038 Form 348 Bond on removal under act of 1887	626

Form 349 Petition for removal on ground of citizenship under act of 1887	627

Form 350 The same 1041 Form 351 Notice of motion for removal	628

Form 352 Order to show cause 1043 Form 353 Order for removal of cause to United States court	629

Form 354 Writ of certiorari under section 7 of the act of March 3 1875	630

Summons 10451069	631

Requisites of the writ	632

Notice to appear	634

In action on contract for money or damages	635

Time for appearance	636

Amendment of summons	637

Compromise 23452349	638

Submitting Controversy 23502357 639644	639

Action in justices court 1054 Justices courtService of summons	640

Alias or additional writs	641

Service of summons	643

Mode of service in general 1058 Redelivery and service after return 1059 Service by sheriff effect	644

Service by deputy 1061 On a minor 1062 On corporations	646

On partners 1064 Abuse of process 1065 Service by whom made 1066 Husband and wife defendants	647

Personal serviceMode	648

Time for service 1069 Substituted service	651

FORMS OF SUMMONS on 1070 Form 355 Summons in action contract for payment of money only	652

Form 356 The sameSummons in justices court	653

Form 357 Summons in action to foreclose mortgage	654

1	655

Affidavit for order	657

Amendment of affidavit 1076 Order for publication	659

Mailing copy to defendant	661

Sufficiency of publication	662

Time to appear	664

Proof of publicationBy whom made and what to contain 1081 Service by publication when conclusive	665

FORMS FOR PUBLICATION OF SUMMONS 1082 Form 358 Affidavit for publication of summons	666

Form 359 Order for publication of summons	667

Form 360 Affidavit of publication	668

Form 361 Affidavit of service by mail of summons and copy of complaint	669

CHAPTER XLI	670

Form and sufficiency of return	671

Amendments of summons and return	674

Defects in summons	675

Construction and operation of return	676

Conclusiveness or return or certificate 1092 Evidence and presumptions	677

Acknowledgment of service	678

Form 365 Affidavit of service of summonsAnother form 1098 Form 366 Admission of due service 1099 Form 367 Simple admission not conceding ...	680

CHAPTER XLII	681

Appearance by attorney	683

Authority of attorney	684

Form 368 Notice of appearance	686

CHAPTER XLIII	687

Operation and effect of notice	688

Necessity for filing	690

Actions and property to which statute is applicable	691

New notice necessary when 1111 Diligence in prosecution required	692

Effect of dismissal FORMS OF LIS PENDENS 1113 Form 369 In an action to foreclose a mechanics lien	693

Form 370 In an action to establish a trust 1115 Form 371 In an action for specific performance 1116 Form 372 Notice of pendency of action of eject...	694

Form 373 Lis pendens in an action in which a warrant of attachment affecting real property has been issued S Dakota 1118 Form 374 Notice of suit ...	695

Form 375 NoticeForeclosureTendency of action 1120 Form 376 Notice of suit in partition 1121 Form 377 Notice of pendency of action to quiet title	696

Form 378 Complaint for maliciously filing a lis pendens	697

Form 379 In application for laying out widening vacating or extending street alley waterchannel park highway or other public place	698

Joinder of issue	699

Issues of	700

Form 417 Affidavit to oppose motion where there are difficult questions of	701

Issues of fact	704

Mixed issues of law and fact	710

Special issues	711

CHAPTER XLV	712

Notice of trial	713

Continuance	715

Contents of affidavit	717

Continuance when refused	718

Election contests 1137 Grounds for continuance	719

Instances where grounds insufficient	720

Insufficient statement	721

Stipulation for continuance 1141 Preventing a continuance	722

Waiver of rights 1143 Costs	723

TRIAL FORMS 1144 Form 380 Demand for inspection and copy 1145 Form 381 Stipulation to admit documents	724

Form 382 Notice to produce at trial 1147 Form 383 In justice court Notice of trial of transferred action	725

Form 384 Notice of trial and note of issue 1149 Form 385 Affidavit for continuance because of absence	726

Counterclaim of defendant	727

Form	728

When not permitted	729

Sufficient reply	730

Departure from complaints	731

594	732

Performance	733

To plea in	734

To plea in avoidance	735

To plea of former recovery	736

To plea of fraud	737

To plea of judgment	738

To plea of justification	739

To plea of payment	740

To plea of performance	741

To a plea of privilege by an attorney	742

To a plea of usury	743

Facts must be alleged	744

Facts must be traversed	745

Fraud as a reply	746

Insufficient reply	747

Promissory note	748

ReplyWhen unnecessary	749

ReplySufficiency	750

ReplyTime of filing	751

RejoinderIts office	752

Breach of agreemento	753

Conversion	754

Demurrer to reply	755

Departure	756

Trespass 65336615 17641788	757

Goods sold	758

Insurance policy	759

Obstrncting highway	760

Withdrawal and substitution of pleo	761

Challenge to juror	762

Grounds of challenge	763

Challenge how tried	765

Jury sworn	766

Evidence adduced 1204a Matters of judicial notice	767

Privileged communicationsAttorney and client	768

Husband and wife 1207 Physician	770

Priest 1209 Public officer 1210 Witnesses in general 1211 Who may be witnesses	771

Children 1213 Parties to suits	772

Partner surviving	773

Religious belief 1216 Practice on evidenceContradictory statements	774

Crossexamination	775

1220	776

Deeds and contracts 1222 Letters correspondence 1223 Public documents	777

Court records	778

Impeachment of witness	779

Party not bound by statements Recalling witness 1227	780

Order of proof Discretion of court Books of account Historical books 1229 Limiting number of witnesses 1230 Refreshing memory of witness	781

Argument of counsel	783

Opening statement 1233 Reading law to jury 1234 Instructions to jury	784

Amendment of pleadings	787

Changing form of action	788

When allowable	789

Amendments of course	790

Amendment by leave of court	791

Misleading and erroneous instructions	792

Instructions refused	794

Amendment to conform to proofs	795

Amendments after trial	796

Amendment of judgment or record	797

What amendments should be allowed	798

Amendment of complaint	799

The sameEffect of amended complaint	800

The same In particular actions	801

The sameObjection to original complaint	802

The sameTime to answer	803

Verification of complaint	804

Amendment of answer	805

Amendment of demurrer	806

AmendmentRelief against mistake	807

Amendment of affidavit	808

Amendment on appeal from justices court	809

Practice on amendments	810

Goods Sold and Delivered	811

Right to answer amended pleadings	812

Presentation of claim 315 Quo warranto	813

Statement in motion	814

Irrelevant pleading defined	815

Amendment of undertaking	816

What may be stricken	817

Election between counts	818

Statement in motion	819

Costbill	820

Ambiguous answer	821

Answer with denials only	822

Waste 66166635 17891793	823

Informal answers	824

Proceedings on motion to strike	825

Sham answers defined	826

Sham defense how tested	827

Sham answers may be stricken	828

Unverified answers	829

What may be sticken out of answer	830

When motion should be made	831

Order not appealable	832

Mistakes in names how corrected	833

Adding or striking out parties	834

Discretion	835

Motion when made	836

Special cases	837

Striking out parties	838

Striking out demurrerGrounds	839

ComplaintStriking out evidentiary matter	840

Striking outMiscellaneous points of practice	841

May be set aside 1	842

FORMS IN TRIAL BY REFEREE 1 1316 Form 413 Affidavit by defendant to move for reference of an action involving a long account 1317 Form ...	843

Form 415 Affidavit to oppose motion denying account 1319 Form 416 Affidavit to oppose motion where fraud is set	844

Form 418 Stipulation to refer 1322 Form 419 Order referring the cause without motion	845

Form 420 Order of reference to take an account as to damages 1324 Form 421 Order of reference to take an account between par ties to a mortgage i...	846

Form 422 Order of reference for accounting in partnership cause 1326 Form 423 Order of reference to determine priority among creditors	847

Form 424 Order of reference to take all testimony and report to the court 1328 Form 425 Plaintiffs account to be presented on reference	848

Form 426 Order that books and papers be deposited with ref eree before accounting	849

Form 427 Oath of referee 1331 Form 428 Appointment of first meeting by referee 1332 Form 429 Notice of hearing or trial by party 1333 Form 43...	850

Form 431 Report of referee 1335 Form 432 Referees report on accounting in partnership cause	852

Form 433 Referees report as to priority of creditors	853

Form 434 Notice of motion for reference to obtain surplus moneys on foreclosure sale	854

Form 435 Order of reference of claims to surplus moneys 1339 Form 436 Referees report thereon	855

Form 437 Notice of filing report of referee 1341 Form 438 Exceptions to report 1342 Form 439 Motion for further report	856

Form 440 Motion to set aside report and for a new trial 1344 Form 441 Order confirming setting aside or amending ref erees report	857

CHAPTER XLIX	859

Error in la y 1347 Exceptions to evidenceAdmission of evidence 1348 Documentary evidence	864

Irrelevant testimony 1350 Insufficiency of evidence 1351 Proving exceptions	865

Special exception necessary 1353 When exception lies	866

ExceptionsRelative to matters of evidenceGenerally 1355 Exceptions to findingsDefective findings	867

Form time for filing	868

Exceptions to instructionsException must be taken	869

Must be specific	870

Form 269 Afidavit on motion to enlarge time to plead	872

Form 270 Order enlarging time to plead	873

Final judgment	875

Judgment must follow allegations and proofs	876

Joint and several judgment	877

Computation of time	878

Consolidation of actions	879

Construction	880

Discretion	881

Contents of notice	882

Due notice	883

Notice essential	884

Notice to attorney	885

Order of courtEntry nunc pro tung	886

Order to show cause	887

Use and Occupation 66366695 17941816	888

Res adjudicata	889

Restitution of rights after reversal of judgment	890

Rule to show cause	891

Service how made	892

Proof of service	893

Service by mail	894

Service on nonresidents	895

MotionsKnowledge of judge	896

The sameRenewal	897

The sameDilatory not favored	898

The same Abandonment	899

The sameIn transcript when considered	900

Waiver of written notice	901

OrdersOrder made during vacation	902

The samePresumption in favor	903

The sameEntry of in minutes	904

Title of action	905

Transfer of motions and orders	906

Denial of execution	907

Actions for real property	908

Service of order	909

Costs security	910

Costs security ofFrom whom required	911

FORMS OF NOTICES OF MOTIONS AFFIDAVITS ETC 912 Form 271 Form of notice	912

Form 272 Affidavit denying genuineness and due execution of written instrument in a pleading	913

Form 273 Notice of motion for order allowing party to enter on land and make survey etc in actions concerning real property	914

Clerks duty 1420 Errors how reviewed	915

Proof when required 1422 Relief granted	916

Waiver of default 1424 When to be entered	917

Setting aside judgment grounds of 1426 California procedure	918

Form of motion to set aside default 1428 Jurisdiction 1429 Motion when to be made	919

Parties not concluded by the record	921

Motion will be refused	922

On terms 1436 AffidavitBy whom made	923

Counteraffidavits	924

Default by fraud 1439 Diligence must be shown 1440 Form of affidavit and notice	925

Excuse for default	926

FORMS IN JUDGMENT BY DEFAULT 1442 Form 463 Judgment by defaultEntry of default by clerk 1443 Form 464 Judgment by default	928

Form 465 Judgment against joint debtor not originally served 1445 Form 466 Notice of motion to set aside a judgment by default	929

Form 467 Affidavit to set aside judgment by default	930

Form 166	931

Denial	932

Two causes of action 1451 Demurrer must be disposed of 1452 Discretion	933

Admission in answer 1454 Frivolous answer	934

Election	935

Verified answer 1457 Form 468 Notice of motion for judgment on the pleadings	936

CHAPTER LIII	937

Who may confess judgment 1460 Confession by attorney 1461 Collateral attack	938

Insufficient statements	939

Joint debtor 1464 Judgment creditor proceedings by 1465 On award 1466 Promissory note 1467 Setting aside confessions	940

Several judgments	941

Void judgments 1471 Judgment by confessionMiscellaneous	942

Judgment by consent FORMS OF JUDGMENT BY CONFESSION 1473 Form 469 Statement and confession of judgment	943

Form 470 Judgment by confession in open court	944

CHAPTER LIV	945

A dismissal 1477 Dismissal by consent 1478 Dismissal by the court	946

Taxes and Taxation 66966804 18171823	947

By plaintiff	948

Dismissal of actionContinued 1482 Dismissal effect	949

The sameContinued	950

Ejectment 1485 Judgment on nonsuit 1486 NonsuitNature	951

Motion	952

When and when not granted	953

Effect of motion for nonsuit 1490 NonsuitMiscellaneous	954

The sameRelief against stipulation 1492 The samePayment of jury 1493 The sameReview on appeal	956

CHAPTER LV	958

Attorneys fees 1497 Retaxing costs	959

Costs when allowedAllowance when discretionary	960

In particular casesClaim and delivery 1500 Clerks duty 1501 Costs are part of judgment 1502 Ejectment 1503 In partition	961

In equity 1505 Injunction 1506 Money or damages	962

On appeal 1508 On judgment affirmed in part and reversed in part	963

On new trial awarded 1510 On judgment reversed	964

On remittitur 1512 Right of use of water 1513 CostsIn particular cases	965

Fraud 68256921 18291845	966

The same Vacating judgment for 1516 Form 471 Memorandum of costs and disbursements	967

CHAPTER LVI	968

Res adjudicata	970

Stare decisisLaw of case	971

Pleading res adjudicata 1522 Evidence of res adjudicata	972

Quo Warranto 70207064 18731883	973

In partition 1524 Replevin	974

Mandamus 70657116 18841894	975

Form 176	976

Judgment in ejectmentEffect 1532 Judgment in action against an estate	977

Judgment in action on bond	978

CHAPTER LVII	979

Equitable relief 1537 JudgmentsDefense	980

JudgmentsImpeachmentRelief against	981

Erroneous judgmentRemedy 1540 Vacating or setting aside	982

JudgmentCollateral attack	984

Actions affecting lands	985

Specific denial of demand	986

Place where cause of action arose	987

Form 473 Outline of complaint to set aside judgment procured by perjury or fraud	988

Residence of defendants as determining venue 989 Waiver of objections	989

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A Treatise on Code Pleading and Practice: Also Containing 1900 ..., Volum 1
William Angus Sutherland
Uten tilgangsbegrensning - 1917

A Treatise on Code Pleading and Practice: Also Containing 1900 ..., Volum 2
William Angus Sutherland
Ingen forhåndsvisning tilgjengelig - 1910

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Vanlige uttrykk og setninger

Populære avsnitt

Side 701 - In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this code.

Vises i 325 bøker fra 1851-1994

Side 52 - In case of the death, or other disability, of a party, the court, on motion, may allow the action to be continued 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.

Vises i 342 bøker fra 1777-1998

Side 875 - Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.

Vises i 412 bøker fra 1819-2004

Side 590 - When the convenience of witnesses and the ends of justice would be promoted by the change.

Vises i 245 bøker fra 1851-2004

Side 769 - All persons, without exception, otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded...

Vises i 124 bøker fra 1850-2007

Side 921 - ... upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect...

Vises i 292 bøker fra 1849-2004

Side 164 - That the court has no jurisdiction of the person of the defendant or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, 4.

Vises i 108 bøker fra 1842-1998

Side 369 - A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action ; 2.

Vises i 560 bøker fra 1846-2004

Side 426 - ... notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion, make the order.

Vises i 173 bøker fra 1850-2004

Side 587 - A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the Court to change the place of trial as in other cases.

Vises i 282 bøker fra 1829-2007

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Tittel	A Treatise on Code Pleading and Practice: Also Containing 1900 Forms Adapted to Practice in California, Alaska, Arizona, Idaho, Montana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Other Code States, Volum 1 A Treatise on Code Pleading and Practice: Also Containing 1900 Forms Adapted to Practice in California, Alaska, Arizona, Idaho, Montana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Other Code States, William Angus Sutherland
Forfatter	William Angus Sutherland
Utgiver	Bancroft-Whitney, 1910

Eksporter sitat	BiBTeX EndNote RefMan

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