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Entered according to Act of Congress, in the year Eighteen Hundred and Eighty, by

CALLAGHIAN & CO.,
In the Office of the Librarian of Congress at Washington.

"AY 23 1920

STEREOTYPED AND PRINTED

BY

THE CHICAGO LEGAL NEWS COMPANY.

PART THIRD.

CODE OF CIVIL PRACTICE.

TITLE XVII.

OF PROCEDURE IN COURTS OF ORIGINAL

JURISDICTION.

. CHAPTER 1.

PRELIMINARY PROVISIONS,

classed,

SECTION 2504. Remedies in civil cases in the courts of this state Remedies are divided into actions and special proceedings.

R. & 2605. Sec. 2505. A civil action is a proceeding in a court of justice

Civil action in which one party, known as the plaintiff, demands against an- detined. other party known as the defendant, the enforcement or protection R. 8 2006, 2009, of a private right, or the prevention or redress of a private wrong. It may also be brought for a recovery of penalty or forf-iture.

(ivil actions include everything ex- | thereon, held, that filing the note as cept those cases which come under a claim against the estate, the claim the criminal jurisdiction of the court: being ie isted, was sufficient bringing Tomlinson t. Hanimond, 8-40. of action to entitle plaintiff to the at

Where a note provided for an attorney's fie: Davids in v. Vloe, :,2torney's fee, in case action was brought 1384.

Sec. 2506. Every other remedy in a civil case is a special Special proceeding.

R. 2 2007.
Proceedings to disbar an attorney! As to method of trying issues in
are special proceedings: The State v. special proceedings, see note to $ 2737.
Clark, 46-155.

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ceedings.

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SEC. 2507. All forms of action are abolished in this state; but Form of ac- the proceedings in a civil action may be of two kinds, ordinary tions. R. & 2 2608, 2010. or equitable.

The legislature has no power to to assimilate and make uniforin the abolish the distinction between law procedure in all law and equity cases. and equity. Such distinction is de- The changes introduced were to be fined and recognized by the Consitu- applied equally to both. (Prior cases tion. (See art. , SS 4 and 6): in which this fact was overlooked, Claussen v. Lafrenz, 4 Gr. 224. cited and criticised): Shepard v. Ford,

Although forms of proceedings are 10-502. abolished, yet pleas in abatement. The term civil action includes prosuch as to the juriseliction, or of ceedings in equity as well as ordianother action pending, are still nary proceedings: Kramer v. Rebproper and legitimate : Rawson v. I man, 9-114. Guiberson, 6-,07.

For soinewhat similar provision, By the Code of 1851 it was intended see $ 2614.

SEC. 2509. The plaintiff may prosecute his action by equitable Equitable pro proceedings in all cases where courts of equity, before the adop

tion of this code, had jurisdiction; and must so proceed in all R. 2 2611.

cases where jurisdiction was exclusive.

SEC. 2509. The action on a note, together with a mortgage or Foreclosure of deed of trust, for the foreclosure of the same, shall be by equitable mortgage ac- proceedings. An action on the bond or note alone, without regard R. & 4179. therein to the mortgage or deed of trust, shall be by ordinary pro

ceedings.

The provision that an action to nized in equity suit: The State ? foreclose a mortgage shall be by Orwig, 25-200; Clough v. Seuy, 49equitable proceedings, is not in con- 111. flict with the c'onstituion, art. 1, $9, As to effect of bringing separate guaranteeing the right of trial by suits on the note and mortgage, see jury. Such right was never recog- 1 3 3320.

SEC. 2510. The action for mechanics' lien shall be prosecuted Mechanic's by equitable proceedings, and therewith shail 1:0 other cause of lien. R. 24183.

action be joined. C. '51, 985.

All persors interestd must be made | action for a mechanic's lien was to be parties to the proceedings before they prosecuted as an ordinary proceeding. can be afficieel by the decree: Jones held, that subsequent incumbrancers v. Hartsock, 42-147, 15:3.

need not be made parties, and that Held, that an action at law might, even though not made parties they by consent of parties, be tried in con- c uld not bring action to redeem, and nection with equitable actions to en- that in such ases there was no equity force mechanics' liens against the of redemption as in case of a mortsame defendant, and one judgment gage: The State v. Eads, 15-114; rendered therein adjusting all claims assented to by two members of the between them: Hines v.Whitebreúst court in Shields v. Keys, 24-299, 308, C. & 1.10., 48–296.

the o her two members expressing no Under Rev. § 4183, by which an opinion.

Sec. 2511. An action for a divorce shall be prosecuted by

equitable proceedings, and no cause of action, save for alimony, Divorce. R. & 4181. shall be joined therewith.

An action for divorce being equita- | to a trial de noro in the supreme court: ble, the right to a trial by jury does | Sherwood v. Sherwood, 44-192.

not exist, and the parties are entitled Sureties: Oc

Sec. 2512. Actions by sureties, and by occupying claimants, cupying claim- and on a lost note or bond, may be by ordinary proceedings. R. & 4185.

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Sec. 2513. In all other cases, except in this code otherwise Ordinary provided, the plaintiff must prosecute his action by ordinary pro- ceedings. ceedings. · Action for writ of habeas corpus is I wey, 43-653; Drumb v. Keene, therefore to be tried as an oriinary | 47-435. action at law: Ex rel. Shaw v. NachtSec. 2514. An error of the plaintiff as to the kind of proceed- Error: effect of.

R. 2013. ings álopted shall not cause the abatement or dismissal of the ke action, but merely a change into the proper proceedings, and a transfer of the action to the proper docket.

Ar action erroneously brought at changed into the proper proceedling as law may be changed to an act on in lere contemplated: Sarery 1. Brorenequily without leaving the court: 0g, 18-246; Trier v. Lytle, 20–30!; Holmes 1. Clark, 10-123, 427. Grny r. Coan. 2:3-311; Gibbs v. Mc

An error in commercing an action Fadden, 39–371. in equity instead of at law, or rice Where an answer to a petition at resii, should be corrected as here law set up both legal and equitable previled. It is not a gr und of de defenses and no separation of the legal mrrer: Conynghaml v. Smith. 16- and equitable issues was had on ihe 471; Brown 0. Mallory. 26-469; trial, held, on a peal, that it would be Il ri; nt r, il Cormick, 22-545. trated as an equitable action: Vanz

That paintitf bas a full, speedy and Ornan 1. Herrill, 27-476. complete rem dy at law is not proper See, also, notes to $ $ 2517 and ground for demurrer. The remedy 2519. is by motion to have the action!

Sec. 2315. Such error may be corrected by the plaintiff with- How corrected out motion at any time before the defendant has answered, or by plaintift.

R. 2014. afterwards, on motion in court. SEC 2516. The defendant mav have the correction made by By defenlant.

R. 2 2 2015, 2016 motior. at or before the filing of bis answer, where it appears by the provisions of this code the wrong proceedings have been adopted.

The motion here contemplated can- / rent but not taken allvantage of, at not be made after filing an answer, the time of filing an answer to the nor at the time of filing an answer to original petition: Moore v. Dist. Tp. an amended petition, when the fact of Union, 28-425 of error in the proceedings was appa-| Sec. 2517. Where the action has been properly commenced Ordinary

changed int. by ordinary proceedings, either party shall have the right, by ca

equitable. motion, to have any issue heretofore exclusively cognizable in R. & 2017. cquity tried in the manner hereinafter prescribed in cases of equitable proceedings ; and if all the issues were such as were heretofore cognizable in equity, though none were exclusively so, the deiendant shall be entitled to have them all tried as in cases of equitable proceedings.

The issue must be made before the able pro cedings: Byers v. Rodatransfer to the chancery docket can baugh, 17–33. be ordered by the court. The discre- ' The equitable issues which either tion of the court is a legal one and is party elects to have tried by equitable reviewable: McHenry r'. Sypher, 12-proceedings may be, ind under ordi585.

nary circumstances should be, first A case properly commenced by or- tried and settled: Hackett v. High, dinary proceedings is not to be trans- 28-539; and after the equitable issues ferred to the equity dlocket on filing are thus tried, any l gal issues rean answer setting up equitaule de vaining are to be disposed of in the fenses but either party may have manner provided for the disposal of such equitable issue tried by equit- uch issues : Rosierz v. Van Dam,

16-175; l'an Orman v. Spafford, 16-1 such equitable issue by equitable pro-
186; Kramer v. Conger. 16-434; Cor-ceedings, such issue must be one
bin ". Woodbine, 33-297; but it is not heretofore exclusively cognizable in
imperative that the equitable issue be equity. (Decided under Rev. § 2617):
tried first. That issue hould be first Walton v. Gray, 29–440.
tried which may resuit in rendering a Equitable defenses may be pleaded
further trial unnecessary: Morris i. in an action at law: See notes to
Merritt, 52-496.

T$ 2655.
To entitle a defendant to a trial of

Sec. 2518. If there be more than one party plaintiff or deCourt may or. der change. fendant who fail to unite on the kind of proceeding to be adopted,

the court, on its own motion, may direct such proceedings to be changed to the same extent as if the parties had unite i in asking that the same be done.

SEC. 2519. An error as to the kind of proceedings adopted in Errors waived. R. 2019. the action is waived by a frilure to move for its correction at the

time and in the manner prescribed in this chapter; and all errors in the decisions of the court are waived unless excepted to at the time, except final judgments and interlocutory or final decrees entered of record.

The objection that the action is $ 2.5 6, t' ough the action should have trought by the wrong kind of pro- been by ordinary proceedings; but if ceedings cannot be taken advantage upon the merits of the case the relief of after judgment: Hatch v. Juda, granted would have been denied at 29-95; nor can such objection be first law and ought not to have be-n given made in the supreme court: Tugel in an cguitable proceeding, the judg. o. Tugei, 38–349

ment will not be sustained: RiciiIf the proper steps to effect the mond v. D. & S. C. R. Co., 33-122, change are not taken in the court be- 489. low, the remedy is regarded as waiv- 1 Where an action is impr perly ed: Parshall v. Moody, 24–314; | prosecuted by equitable pro eedings, Green v. Marrel, 37-95; Knott v. à failure to object thereto as provided Tincher, 39-628.

in $ 2516, operates as a waiver of a Generally a judgment in an equit- / jury trial: Ibid., 490. able proceedink will be sustained if See notes to $ 2516. objection has not been made under |

Sec. 2520. The provisions of this code concerning the proseUniformity of

cution of a civil action, apply to both kinds of proceeding, whether R 2 : ::173. ordinary or equitable unless the contrary appears, and shall be

followed in special proceedings not otherwise regulated so far as applicable.

Proceedirgs to condemn property / actions: Forney v. Ralls, 30-559. for a work of internal improvement Section applied to proceedings to should be governed, as far as practi- disbar an attorney: The State v. cable, by the rules governing ordinary | Clarke, 46–155, 159.

SEC. 2521. No action shall be brought upon any judgment, Actions en

against a delendant therein, rendered in any court of record of los: this state within fifteen years after the rendition thereof without Wich brought

leave of the court for good cause shown and on notice to the advers) party, nor on a judgment of a justice of the peace of this state withiin eight years after the same is rendered, except in cases where the docket of the justice, or record of such ju igment jo, or shall be, lost or destroyed.

This section affects the remedy and I prosecute an action is subject for applies to judgments rendered before demurrer: Ibid. as well as after its passage: Watts Where the record of a judgment is v. Ererett, 47-269.

I lost or destroyed, suit thereon as here Failure to allege leave of court to contemplated is not intended to be

procedure.

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