transferred. The costs and fees thereof and of filing the papers anew must be paid by the party at whose instance the order was made; provided, that when said order is made for the reason that the cause was commenced in the wrong county, and this appears affirmatively upon the face of the complaint, said costs of transfer and filing the papers anew shall be paid by the plaintiff in the action within ten days after the making of such order or said cause dismissed for want of jurisdiction. The court to which an action or proceeding is transferred shall have and exercise the like jurisdiction as though it had been originally commenced therein. [C. L. § 3200*; '96, p. 92. Cal. C. Civ. P. 399*. 2937. Id. Certification of judgment affecting real estate. When an action or proceeding affecting the title to or possession of real estate has been brought in or transferred to a court for a county other than the county in which the real estate, or some portion of it, is situated, the clerk of such court must, after final judgment therein, certify, under his seal of office, and transmit to the corresponding court of the county in which the real estate affected by the action is situated, a copy of the judgment. The clerk receiving such copy must file, docket, and record the judgment in the records of the court, briefly designating it as a judgment transferred from court (naming the proper court). [C. L. § 3201*: '96, p. 92. Cal. C. Civ. P. 400. Judgment docketed becomes a lien, 23198. CHAPTER 8. MANNER OF COMMENCING ACTIONS. 2938. Action, how commenced. A civil action shall be commenced by the filing of a complaint with the clerk of the court in which the action is [C. L. § 3202*. The commencement of a suit must be taken to be the filing of the complaint where summons was not issued within one year, but defendants voluntarily answered without objection. Needham v. Salt Lake City, 7 U. 319; 26 P. 920. Such summons shall be substantially in the The State of Utah, to the said defendant: County, State of Utah. You are hereby summoned to appear within twenty days after the service of this summons upon you, if served within the county in which this action is brought, otherwise, within thirty days after service, and defend the above entitled action; and in case of your failure so to do, judgment will be rendered against you according to the demand of the complaint, of which a copy is herewith served upon you. (Signed) E F. Plaintiff (or Plaintiff's Attorney). Utah. P. O. Address: (Giving street number, if any) If a copy of the complaint be not served with the summons, the words of which a copy is herewith served upon you" may be omitted or erased, and in place thereof may be inserted the words which, within ten days after service of this summons upon you, will be filed with the clerk of said court." $ 3204*. Cal. C. Civ. P. 2 497. Col., Mills' An. C. (1896) 2 35. A party may prosecute or defend before any tribunal, any civil cause to which he is a party, Con. art. 1, sec. 11. Time to answer or demur may be extended, 22 3005, 3329. The summons, in an action by an officer, should show his official character. In re Hamilton v. Spiers, 2 U. 225. [C. L. Summons failing to state time and place at which defendant shall appear and answer is fatally defective. Winters v. Hughes, 3 U. 443; 24 P. 759. But summons in action on promissory note erroneously drawn under subd. 5, § 3204, C. L. 1888, is sufficient to support judgment by default. Miller v. Zeigler, 3 U. 17; 5 P. 518. Return. Time valid. The 2940. Who may serve summons. summons, together with a copy of the complaint, if any, may be served by the sheriff of the county where the defendant may be found, or by any other person over twenty-one years of age and not a party to the action. The officer or other person serving a summons shall make due return thereof, within five days after service, to the person whose name is subscribed thereto. The person subscribing the summons may, at his option, by indorsement thereon, fix a time for the service thereof, which shall not exceed three months, and the service shall then be made accordingly. [C. L. § 3207*. Wis. 2635; Cal. C. Civ. P. 2 410, Sup. '93, p. 950. When sheriff disqualified, constable to serve, 2597. Private party serving summons not entitled to fee, 2946. Service of summons by telegraph. 23337. 2941. Separate summons for defendants in different counties. Where there are several defendants residing in different counties, a separate summons may be issued to each county for the service of the defendants residing therein. [C. L. § 3203*. Cal. C. Civ. P. ¿ 406*. One copy of complaint deposited for defendants in each county, 2946. 2942. Summons must issue within three months. Alias. If a complaint is filed with the clerk, summons must be issued thereon within three months from the date of filing. If the summons is returned without being served on any or all of the defendants, an alias summons in the same form as the original may be issued and served at any time within a year after the filing of the complaint. [C. L. § 3205*. Cal. C. Civ. P. 408. See Sup. '89, p. 358. 2943. Appearance of one defendant; service upon others. If the action be brought upon a joint contract of two or more defendants, and one of them has appeared within the year, the other or others may be served or appear at any time before trial. Cal. C. Civ. P. % 406. [C. L. § 3203*. 2944. Time of service to be indorsed on copy. Any officer or other person authorized to serve a summons, and who shall serve the same, shall, at the time of the service thereof, indorse upon the copy or copies of such summons which he shall deliver to the defendant or defendants in such action, the date upon which the same was so served, and sign his name thereto, and add, if an officer, his official title. Wis., S. & B. An. S. (1889) 2 2635a*. 2945. Appearance or written acknowledgment deemed service. Refusal of copy. The voluntary appearance of a defendant, or an acknowledgment on the back of a summons or other written acknowledgment of service of summons upon him, shall be deemed valid and sufficient service. When the defendant shall refuse to receive a copy of the summons, the offer of the officer or other person to deliver a copy thereof shall be deemed sufficient service of such summons, provided the person serving the same shall state that it is a summons. Col.. Mills' An. C. (1896) 2 40*. Guardian may appear for ward and waive service. 2 4046. "Appearance" defined, effect, 3334. 2946. Complaint to be filed within ten days. Copy. Return. Fees. Within ten days after service of the summons, the complaint, if not pre viously filed, together with the summons and proof of service thereof, must be A return of service stating service of summons attached to a true and correct copy of the com 2947. Objection to summons or service, how taken. Objections to the summons, or the service thereof, or proof of service thereof, may be taken by motion on behalf of the defendant, particularly specifying the objections, accompanied by the certificate of counsel that in his opinion the objection is well taken: after the filing and serving of such motion and certificate, the time for pleading shall be suspended until such objection is passed upon by the court. § 3209. Failure to make personal service, leave to answer, 3005. Such objections not made in manner herein pre 2948. Summons, how served. delivering a copy thereof as follows: [C. L. scribed are waived. Miller v. Zeigler, 3 U. 17: 5 The summons must be served by 1. If the defendant is an incorporated city, to the mayor or recorder; if an incorporated town, to the president or clerk of the board of trustees. 2. If the defendant is a county, to a county commissioner or to the county clerk of such county. 3. If the defendant is a school district, to a trustee thereof; if the board of education of a city, to the president or clerk of such board. 4. If the defendant is an irrigation district, to the president, superintendent, or watermaster. 5. If the defendant is a domestic corporation, to the president or head of the corporation, secretary, treasurer, cashier, or managing agent thereof. If the defendant is a foreign corporation, or non-resident joint stock company or association, to the president, secretary, treasurer, or other officer thereof, or to the person designated by such corporation, company, or association as one upon whom process may be served. If no such person can be found, then upon any clerk, superintendent, general agent, cashier, principal director, ticket agent, station keeper, managing agent, or other agent having the management, direction. or control of any property of such corporation, company, or association. If none of the persons named in this subdivision can be found in the county in which such action is commenced, then service may be made as provided herein, upon any of such persons in any county in this state. 6. If the defendant is a minor under the age of fourteen years, to such minor and also to his father, mother, or guardian; or, if there is none within the state, then to any person having the care and control of such minor, or with whom he resides, or in whose service he is employed. 7. If the defendant is a person judicially declared to be of unsound mind or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such guardian. 8. In all other cases, to the defendant personally, or by leaving such copy at his usual place of abode with some suitable person of at least the age of fourteen years. [C. L. § 3208*. Cal. C. Civ. P. 2 411. Mont. C. Civ. P. 2 636*. Service upon guardian is service upon ward, 4046. Service by telegraph, 3337. Service upon sheriff, 596. Proof of service, 2952. Corporation must have agent upon whom process may be served, 22 351, 352; Con. art. 12, sec. 9. Where a foreign corporation has an agent residing in this territory, service of summons can be had on such agent, and after the lapse of the time within which defendant is required to answer, the plaintiff is entitled to judgment by default, provided there has been no appearance entered. Amended chap 51 1899 Walker Bros. v. Continental Insurance Co., 2 U. 331. Where foreign corporation has no designated agent, service upon its attorney having some of its property in charge is valid. Saunders v. Sioux City Nursery, 6 U. 431; 24 P. 532. 2949. Id. When service made by publication. When the person on whom the service of a summons is to be made resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of the summons; or when the defendant is a foreign corporation, having no managing or business agent, cashier, secretary, or other officer within the state, and an affidavit stating any of these facts is filed with the clerk of the court in which the action is brought, and such affidavit also states that a cause of action exists against the defendant in respect to whom the service of the summons is to be made, or that he or it is a necessary or proper party to the action, the clerk of the court in which the action is commenced shall cause the service of the summons to be made by publication thereof. § 3210*. Cal. C. Civ. P. 2 412. See Sup. '93, p. 951. [C. L. 3461. Service by publication upon unknown defendant, 2951. 2950. Id. Order. Mailing copies. Personal service, when complete. The order of the clerk must direct the publication to be made five times. once in each week for five successive weeks, in a newspaper to be designated by him as most likely to give notice to the person to be served. In case of publication, where the residence of a non-resident or absent defendant is known, the clerk must forthwith deposit a copy of the summons and complaint in the postoffice, directed to the person to be served at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the postoffice. The service of summons is complete on the expiration of the thirtieth day after the first publication; or in case of personal service out of the state, on the tenth day after actual service. [C. L. § 3211*. Cal. C. Civ. P. 413*. Judgment after service by publication, 3179. should continue, nor directing mailing copy of summons and complaint to defendant, fails to confer jurisdiction. Park v. Highee, 6 U. 414; 24 P. 524. 2951. Service by publication on unknown parties. If any plaintiff shall allege that there are, or that he verily believes that there are, persons interested in the subject matter of the complaint, whose names he cannot insert therein, because they are unknown to him, and shall describe the interest of such persons, and how derived so far as his knowledge extends, the court or the judge thereof shall make an order for publication of summons, reciting, moreover, the substance of the allegations of the complaint in relation to the interest of such unknown parties; and after the completion of service by such publication, the court shall have jurisdiction of such persons, and any judgment or decree rendered in the action shall apply to and conclude such persons with respect to such interest in the subject matter of the action. Col., Mills' An. C. (1896) % 44: 23007. Unknown defendants in suit for partition, Proceeding where true name of party unknown, 3526. Proof of the service of the sum 2952. Proof of service, how made. mons and of the complaint, if any, accompanying the same, shall be as follows: If served by the sheriff, his certificate thereof, showing place, time, and manner of service. 2. If by any other person, his affidavit thereof, showing place, time, and manner of service, that he knew the person served to be the defendant mentioned in the summons, and left with as well as delivered to him a copy; and if the defendant was not personally served, he shall state in such affidavit, when, where, and with whom such copy was left. 3. The written admission of the defendant. 4. In case of publication, the affidavit of the publisher, or printer, or his foreman or principal clerk, showing the same, and specifying the date of the first and last publications; and an affidavit of a deposit of a copy of the summons and complaint in the postoffice as prescribed by law, and the order therefor, if such deposit shall have been required, by the person making the same. [C. L. § 3213*. Acknowledgment of service, 2945. Cal. C. Civ. P. 2 415o. 2953. Lis pendens. Form. Effect of. In an action affecting the title or the right of possession of real property, the plaintiff at the time of filing the complaint, and the defendant at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterward, may file for record with the recorder of the county in which the property or some part thereof is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action or defense, and a description of the property in that county affected thereby. From the time of filing such notice for record only shall a purchaser or incumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action, and only of its pendency against parties designated by their real names. [C. L. § 3206. Cal. C. Civ. P. 2409. Lis pendens in action for partition, ? 3525. 2954. Action against joint debtors; service on part. When the action is against two or more defendants jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants. [C. L. § 3212. Cal. C. Civ. P. 414. Execution when service had on one or more, 3234. Action against parties severally liable, 2918. Judgment against one of several, 22 3184 3186. Parties not served may be ordered to show cause why they should not be bound by judgment, 23201. Contribution, 3270. 2955. Jurisdiction, when acquired. From the time of the service of the summons or the filing of the complaint in a civil action, the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings. [C. L. § 3214*. The words "of the parties" were placed in this section inadvertently and were observed too late to be stricken out by the legislature. Cal. C. Civ. P. 2 416*. Col., Mills' An. C. 1896, 844. CHAPTER 9. PLEADINGS. 2956. Defined. The pleadings are the formal allegations by the parties of their respective claims and defenses for the judgment of the court. [C. L. § 3215. Cal. C. Civ. P. 420. Parties known as plaintiff and defendant, 2853. Title not changed on appeal, ? 3303. 2957. Form and sufficiency, how determined. The forms of pleading in civil actions and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed in this code. [C. L. § 3216. Cal. C. Civ. P. 2 421. General rules of pleading, ?? 2986--3009. But one form of civil action, 2852. Law and equity may be administered in same action, Con. art. 8. sec. 19. 2958. Pleadings of plaintiff. Of defendant. The only pleadings allowed on the part of the plaintiff are: 1. The complaint. 2. The demurrer to the answer. 3. The reply. |