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known.
R. 2758.

C. '51, 1694.

Written instru

administrator must sue for the bene- ters v. C., R. I. & P. R. Co., 36-458. fit of the estate, under § 2526: Wal

SEC. 2557. When the precise name of any defendant cannot be ascertained, he may be described as accurately as practicable, and when the name is ascertained it shall be substituted in the proceedings.

a known person, who can be described with some certainty: Reynolds v. May, 4 Gr., 283.

In a suit brought against "the heirs of Otis Reynolds," held, that the defendants were not described with sufficient certainty. The Code con- For similar provision as to proceedtemplates that the defendant shall beings before a justice, see § 3519.

SEC. 2558. When an action is founded on a written instrument: suit on, ment, suit may be brought by or against any of the parties thereto, by the same name and description as those by which they are designated in such instrument.

low brought.

R. 2786.

C. '51, 1692.

Prisoner in penitentiary. R. ¿ 2781.

Pembinaw and owners:" Steamboat, etc.. . Wilson, 11-479.

Where the name inserted in the instrument as that of payee is not that of a person, partnership or corUnder this section it is not necesporation, the suit cannot be brought sary to allege either copartnership or in that name. So held, where a note corporate capacity: Harris Mfg Co. was made payable to "Steamboat v. Marsh, 49-11.

SEC. 2559. No judgment can be rendered against a prisoner in the penitentiary until after a defense made for him by his attorney, or if there is none, by a person appointed by the court to .defend him.

SEC. 2560. The state shall commence and prosecute suits acState: actions cording to the laws of the land as in cases between individuals, except that no security shall in such cases be required.

by.

K. 2793.

Transfer: abatement. R. 2794.

C. '51, 1698.

SEC. 2561. No action shall abate by the transfer of any interest therein during its pendency.

Under corresponding section of Rev., held, that where plaintiff in an action to recover property, transferred his interest pending the action, the suit might still be prosecuted in his name: Jordan v. Ping, 32-64; and

that an action might be continued in the name of the original party, or the court might allow the person to which the transfer was made to be substituted: Chicasaw Co. v. Pitcher, 56– 593. And see cases under § 2543.

MARRIED WOMEN.

SEC. 2562. A married woman may in all cases sue and be May sue with sued without joining her husband with her, to the same extent as if she were unmarried, and an attachment or judgment in such action shall be enforced by or against her as if she were a single

out joining

husband.

K. 2772.

1 G. A. ch. 167, 11.

Defense by.

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2774.

C. '51, 1687.

When husband

family.

woman.

Personal judgments against mar- same as in case of judgments against ried women may be enforced against other persons: Van Metre v. Wolf subsequently acquired property the | 27-341.

SEC. 2563. If husband and wife are sued together, the wife may defend for her own right; and if either neglect to defend, the other may defend for such one also.

SEC. 2564. When a husband has deserted his family, the wife or wife deserts may prosecute or defend in his name any action which he might have prosecuted or defended, and shall have the same powers and 13. A. cb. 167, rights therein as he might have had; and under like circumstances

R. 2776.

12.

the same right shall apply to the husband upon the desertion of the wife.

MINORS.

brought.

SEC. 2565. The action of a minor must be brought by his Action: how guardian or next friend; but the court has power to dismiss it if it R. 2777. is not for the benefit of the minor, or to substitute the guardian C. 51, ¿ § 16SS 9. of the minor or other person as next friend.

ted: Thurston v. Carenor, 8-155.

An infant may sue by his next | be discharged and another substitufriend, and on the trial prove his infancy as establishing his right to sue in that manner: Byers v. Lessees of D. V. R. Co., 21-54.

The next friend" in whose name a suit for a minor is commenced, may

In an action brought for a minor by his next friend, such next friend is liable for costs: Vance v. Fall, 48-364.

R. 2778.

SEC. 2566. The defense of a minor must be by his regular Defense Ly guardian, or by a guardian appointed to defend him where no C. '51, loSS-9. regular guardian appears, or where the court directs a defense, by

a guardian appointed for that purpose. No judgment can be rendered against a minor until after a defense by a guardian.

157.

The court has no authority to ap-1213; Cavender v. Heirs af Smith, 5point a guardian ad litem to act for a minor until complete service upon such minor has been had: Good v. Norley, 28-188, 199.

Failure to appoint a guardian ad litem, and rendition of judgment without defense by minor, does not render a judgment void. It is erroneous, but can only be taken advantage of by direct proceedings: Drake r. Hanshaw, 47-291; Myers v. Davis, 47-325, 330; Bickel v. Erskine, 43-|

Where a guardian ad litem was not appointed for the minor defendant until the trial had commenced and plaintiff had rested, when an attorney for the defendant was appointed as such guardian, held, that a refusal of the court to re-try the case from the beginning would not be sufficient to warrant a reversal, no prejudice appearing to have resulted therefrom: Wickersham v. Timmons, 49-267.

pointment of

SEC. 2567. The appointment cannot be made until after ser- Guardian: apvice of the notice in the action as directed in this code, and may R.2779. then be made by the court or judge thereof, or during vacation, by the clerk; but the court shall have the power to remove such guardian when the interests of the minor require such change. If made by the judge or clerk, it shall be done by endorsing the name of the person appointed, and the time thereof, on the petition in the action.

After service by publication in the same manner as in case of an adult, the court may appoint a guardian ad litem for a minor defendant as here provided: Judd v. Mosely, 30-423.

Where there has not been sufficient service of notice, the appointment and appearance by a guardian ad litem will not confer jurisdiction: Allen v. Saylor, 14-435.

fourteen years

SEC. 2568. The appointment may be made on the application When over of the minor if he is of the age of fourteen years, and applies at of age or before the time he is required to appear and defend. If he R. 2780. does not so apply, or is under that age, the appointment may be made on the application of any friend of the minor or on that of the plaintiff in the action.

Plaintiff:

action by. R. 2781.

Defense: guar

dian of

R. 2782.

R. 2783.

INSANE.

SEC. 2569. The action of a person judicially found to be of unsound mind, must be brought by his guardian, and, if he have none, the court or judge thereof, or the clerk, in vacation, may appoint one for the purposes of the action.

SEC. 2570. The defense of an action against a person judicially found to be of unsound mind, or a person confined in any state lunatic asylum, who, by the certificate of the physician in charge, appears to be of unsound mind, must be by his guardian or a guardian appointed by the court to defend for him. Such appointment may be made upon the application of any friend of the defendant, or on that of the plaintiff, but not until service has been made as directed in this code, and no judgment can be rendered against him until defense has been made as herein provided.

SEC. 2571. Where a party is judicially found to be of unsound Pending suit. mind, or is confined in any state lunatic asylum, and, by the certificate of the physician in charge, appears to be of unsound mind during the pendency of an action, the fact being stated on the record, if he is plaintiff his guardian may be joined with him in the action as such; if he is defendant, the plaintiff may, on ten days' notice thereof to his guardian, have an order making the guardian a defendant also.

INTERPLEADER.

substitution of parties: de

posit of prop

erty.
R. 2767.

C. 51, 1685,
1686.

SEC. 2572. Upon affidavit of a defendant before answer, in any Interpleader: action upon contract for the recovery of personal property, that some third party without collusion with him has, or makes a claim to the subject of the action, or on proof thereof as the court may direct, the court may make an order for the safe keeping, or for the payment or deposit in court or delivery of the subject of the action to such person as it may direct, and an order requiring such third person to appear in a reasonable time and maintain or relinquish his claims against the defendant, and in the meantime stay the proceedings. If such third party, being served with a copy of the order, fails to appear, the court may declare him barred of all claim in respect to the subject of the action against the defendant therein. If such third person appears, he shall be allowed to make himself defendant in the action in lieu of the original defendant, who shall be discharged from all liability to either of the other parties, in respect to the subject of the action upon his compliance with the order of the court for payment, deposit, or delivery thereof.

rule to sheriffs

and officers. R. ¿ 2758.

SEC. 2573. The provisions of the last section shall be applicaApplication of ble to an action brought against a sheriff or other officer, for the recovery of personal property taken by him under an attachment or execution, or for the value of such property so taken and sold by him. And the defendant in any such action shall be entitled to the benefit of these provisions against the party in whose favor the attachment or execution issued, upon exhibiting to the court. the process under which he acted, with his affidavit that the prop

erty, for the recovery of which, or its proceeds, the action was brought, was taken under such process.

R. 2769.

The remedy here given the officer that by indemnity bond provided in in such cases, is merely cumulative to § 3055: Kaster v. Pease, 42–488. SEC. 2574. In an action against a sheriff or other officer, for Same. the recovery of property taken under an attachment or execution, the court may, upon application of the defendant and of the party in whose favor the process issued, permit the latter to be substituted as defendant, sureties for the cost being given.

lord's attach

SEC. 2575. An action to recover the possession of specific In case of landpersonal property taken under a landlord's attachment, when it is ment. brought by the tenant or his assignee or under-tenant, may be R. 2770. against the party who sued out the attachment; and the property claimed by such action may, under the writ therefor, be taken from the officer who seized it when he has no other claim to hold it than that derived from the writ. The endorsement of a levy on the property made upon the process by the officer holding it, shall be a sufficient taking of the property to sustain action against the party who sued out the writ.

CHAPTER 4.

OF PLACE OF BRINGING SUIT.

real proper. y.

SECTION 2576. Actions for the following causes must be In relation to brought in the county in which the subject of the action, or some R. 2795. part thereof, is situated:

For the recovery of real property, or of an estate therein, or for the determination of such right or interest;

2. For the partition of real property;

3. For injuries to real property.

C. 51, 1703.

SEC. 2577. Actions for injuries to real property may be same. brought either in the county where the property is, or where the defendant resides.

This section and 3 of the preceding section seem inconsistent. In the original, the two sections are in different parts of the chapter, but in the re-arrangement by the editor, they are brought together in the printed code as Lere.}

mechanics'

SEC. 2578. An action for the foreclosure of a mortgage of real Mortgage: property, or for the sale of real property under an encumbrance lien. or charge, or to enforce a mechanics' lien on real property, may be brought in the county in which the property to be affected or some part thereof is situated.

Action to foreclose a mortgage and defendant resides: Cole v. Conner, for general judgment against mort-10-299; Finnagan v. Manchester, 12gagor, may be brought either where 521. See, also, Chadbourne v. Gilthe property is situated or where the man, 29-181.

SEC. 2579. Actions for the following causes must be brought oficers and on in the county where the cause, or some part thereof, arose;

Fines, forfeitures: agains'

official bonds.

K. @ 2796.

property. R. 22797.

C. '51, 1703.

1. An action for the recovery of a fine, penalty, or forfeiture imposed by a statute, except that when the offense for which the claim is made was committed on a water course or highway which is the boundary of two counties, the action may be brought in either of them;

2. An action against a public officer or person specially appointed to execute his duties, for an act done by him in virtue or under color of his office, or against one who by his command, or in his aid, shall do anything touching the duties of such officer or for neglect of official duty;

3. An action on the official bond of a public officer. An action on a bail bond given up- | found. The forfeiture belongs to the on change of venue from one county county to which the change was to another, conditioned for the ap- taken: Decatur Co. v. Maxwell, 26– pearance of defendant in the county 398. to which the change is tak›n, should be brought in that county and not in the county where the indictment was

As to place of bringing action on bail bond, see § 4559.

SEC. 2580. An action, when aided by attachment, may be Attachment of brought in any county of the state wherever any part of the property sought to be attached may be found, when the defendant whose property is thus pursued is a non-resident of this state. If such defendant is a resident of this state, such action must be brought in the county of his residence, or that in which the contract was to be performed, except that if an action be duly brought against such defendant in any other county by virtue of any provisions of this chapter, then such action may, if legal cause for an attachment exist, be aided by an attachment.

The word "contract "in the phrase | "that (county) in which the contract is to be performed, refers to such written contract as is contemplated in the following section and not to verbal contracts: Hatch e. Johnson, 44535.

As to whether the proceedings in an action by attachment against a non-resident defendant served by

publication, brought in a county where no property is found, but in which proceedings property in another county is levied on, are valid and may be removed to the proper county under $ 2589 (discussing the question with reference to the provisions of Code of '51), see Laird v. Dickerson, 40-665.

SEC. 2581. When, by its terms, a written contract is to be Place of con- performed in any particular place, action for breach thereof may be brought in the county wherein such place is situated.

cract.

R. 27.8.

C. 51, 1703.

Where defendant bought of plaintiff fruit trees, agreeing to pay therefor a certain sum on their delivery at a certain place, held, that the contract to pay was not, by its terms, to be performed in any particular place, and suit for the price should be brought where the defendant resided. The agreement to perform in a particular place must be in terms, and not by implication merely: Hunt v. Bratt, 23-171.

Where personal property is to be delivered by the vendor and received by the vendee at a particular place, an action for the breach of such contract may be brought in the county

where, by its terms, the property was to be delivere : Oliver v. Buss, 3090; Hauger v. McCarthey, 34-415.

Where a certificate of deposit was issued payable at a certain date on return of the certificate, held, that by its terms it was "to be performed" at the place where issued, so that an action on it might be brought in that county: Sanbourn v. Smith, 44–152.

Where a bond was given conditioned for the payment of a penalty if the principal failed to erect a schoolhouse at a place named, according to a certain written contract, etc, held, that it was not "to be performed in a particular place," and an action

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