Gambar halaman
PDF
ePub

APPEARANCE.

SEC. 2626. The mode of appearance may be: Modle of de fiu:d.

1. By delivering to the plaintiff or the clerk of the court a memR. 24810.

orandum in writing to the effect that the defendant appears, signed either by the defendant in person, or his attorney, dated the day of its delivery, and to be filed in the case;

2. By announcing to the court an appearance, which shall be entered of record;

3. By an appearance, even though specially made, by himself or his attorney, for any purpose connected with the cause; or for any purpose connected with the service or insufficiency of the notice. And an appearance, special or other, to object to the substance or service of the notice, shall render any further notice unnecessary ; but may entitle the defendant to a continuance, il it shall appear to the court that he has not had the full timely notice required of the substantial cause of action stated in the . petition.

4. No member of the general assembly shall be held to appear embers of or answer any civil action or special proceeding, in any court (eneral' sembly not riquir

air of record, or inferior court, while such general assembly is in i to anser session, nor shall any person be so. held to answer or appear, ings during in any such court, on the 1st day of January, the 4th day of sssion. July, ihe 25th day of December, or on any day of thanksgiving Xor any person

:'^ appointed by the president of the United States or by the gove ernor of this state.

[As amended by 15th G. A., ch. 10, adding the fourth subdivision.)

The memorandum in writing need! The role that a special appearance not in terms state that the defendant to object to the notice confers jurisappears. If he files a pleading in diction, is applicable in proceedings the action, it will be sufficient. Such before a justice: Church v. (1083an appearance will be an appearance man, 49-414. in court, although the court be not in Whe:e the court has jurisdiction of session: Conklin v. Johnson, 34-266. the subject matter mere irregularity

A written memorandum of appear- in the process, or its service, wiil be ance in a particular case held suffi- cured by voluntary appearance; so cient: Saw v. Nat'l State Bk., 49- helii in case of an appeal from a jus179.

| tice of the peace: Wilgus 1. (etAppearance to object to the service tings, 19–82. But a want of notice of notice is a general appearance to is not waived by appearance where the action: McFarland v. Lowry, notice is jurisdictional, except where 40-467.

| a subsequent notice would have the Appearance waire's any defect in effect to give jurisdiction Spurrier ?. service: Van Vark 1. l'rin Dam, 14- Wertner, 45-486; (and see note to S 232; Chilis 1'. Limback, 30–395. 960):

Appearance of defendant to cross An appearance does not waive the examination plaintiff's witnesses, even right to have an action discontinued though a general appearance is dis- if the petition is not filed by the time claimed, is sufficient to give juriselic-fixed in the notice as provided. in tion: Bahn v. Grier, 37-627; so is an $ 2600: Cibula v. Pitt's, etc., M'f I appearance to object to the sufficiency Co., 48-528. of a service upon a director of a core An appearance after default, to poration: Roberison v. Eldora R. & have the default set aside as being C. Co , 27-245; so is the filing of a rendered on insufficient notice, is not motion for continuance: Stockdale v. such an appearance as will cure the Buckingham, 11-45; so is the filing defect in entering default without of a motion to dissolve an at achment proper notice, such a case being ditin attachment proceedings: Chitten- ferent from an appearance befoie the den 0. Hobbs, 9-117.

| detault to object to the insufficitacy

of the notice: Boales v. Shules, 29– term: Des Moines Branch, etc., v. 507.

Van, 12-523. An appearance by motion to set The presumption is that an attoraside a sheriff's sale is not an appear- ney who appears for a party is authorance to the original action: Osborn ized to do so: Potter ». Parsons, 14t. Cloud, 21-238.

1286; Harshey v. Blackmar, 20-161; An appearance of a party to testify but if the attorney is in fact not auas a witness, is not an appearance to thorized, the party may be relieved the action: Nixon 1. Downey, 42–78. against the judgment by direct action

Defendunt is not entitled to a con- in equity to set it aside: Bryant v. tinuance unless for cause shown when Williams, 21-329. he has appeared in response to a no- As to appearance after default to tice, defective only in not naming the cross-examine witnesses, see § 2873.

WHEN ALL DEFENDANTS ARE NOT SERVED.

cedure.

SEC. 2627. When the action is against two or more defendants, Mode of proand one or more shall have been served, but not all of them, the R S1 plaintiff may proceed as follows :

1. If the action be against defendants jointly, or jointly and severally, or severally liable only, he may, without prejudice to his rights in that or any other action against those not served, proceed against those served in the same manner as if they were the only defendants ; if he recover against those jointly liable only, he may take judgment against ail thus liable, which may be enforced against the joint property and separate property of those served, but not against the separate property of those not served, until they have had opportunity to show cause why judgment should not be enforced against their separate property; or,

2. The plaintiff may continue till the next term, and proceed to bring in the other defendants; but at such second term the suit shall proceed against all who have been served in due time, and ro further delay shall be allowed to bring in the others, unless all that appear shall consent to such a delay,

REAL ESTATE.

Sec. 2628. When a petition has been filed affecting real es- Pending of rc. tate, the action is pending so as to charge third persons with notice to

third parties. notice of its pendency, ani while pending no interest can be ac- R. 3812. quired by third persons in the subject matter thereof as againsi the plaintiff's title, if the real property affected be situated in the county where the petition is filed.

An action to foreclose a mo:tgage! The purchaser at tax sale of land
is notice to the world of the rights of on which a University fund mort. :
the mortgagee in the mortgaged / gage is being foreclosed is bomd by
premises: Knowles 1. Rablin, 20-| the decree therein: Crum v. Cotting,
101.

22-111.
The purchaser at a foreclosure sale. A purchaser, pendente lite, takes
is affected with notice of another fore. subject to an action pending against
closure proceeding then pending a to | bis grantor, atfecting the tile, and
the same property: Cooley r. Bray- the fact that the suit is subsequently
ton, 16-10.

dismissed without prejudice, and a A purchaser of real property is not new suit commenced, will not relieve charged with notice of a suit with re- him of notice: Ferrier . Buzick, spect thereto, to which neither he nor | 6–28. his grantor is a party: Parsons v. | The fact that the grantor frauduHoyt, 24-154.

lently conceals from the grantee the

[ocr errors]

2 16.

pendency of the action will not affect | Blanchard r. Ware, 37-305.
the force of the judgment as between Section applied: Souden v. Craig,
the opposite party and the grantee: / 26-156.

Sec. 2629. When any part of real property, the subject of an When property action, is situated in any other county than the one in which the is situated'in ' action is brought, the plaintiff must, in order to affect third per

sons with constructive notice of the pendency of the action, 'file R. 2813.

. 167. with the clerk of the district court of such county, a notice of the

pendency of the action, containing the names of the parties, the object of the action, and a description of the property in that county affected thereby, and from the time of such filing only shall the pendency of the action be constructive notice to subsequent vendees or encumbrancers thereof, who shall be bound by all the proceedings taken after the filing of such notice, to the same extent as if a party to the action, and the clerk of such county must, immediately on receipt of such notice, index and record the same in the encumbrance book. And within two months after the determination of such action, there shall be filed with such clerk a certified copy of the final order, judgment, or decree, who shall enter and index the same in the manner as though rendered in that county, or such notice of pendency shall cease to be constructive notice.

CHAPTER 7.

OF JOINDER OF ACTIONS.

SECTION 2630. Causes of action of whatever kind, where each Ordinary and may be prosecuted by the same kind of proceedings, provided equitable can- that they be by the same party, and against the same party in the not be. R 9281. same rights, and if suit on all may be brought and tried in that C. '51, 1751.

countv, may be joined in the same petition ; but the court, to prevent confusion therein, may direct all or any portion of the issues joined therein to be tried separately, and may determine the order thereof.

Two causes of action which may be Distinct causes of action in favor of prosecuted by the same proceeding two different parties, as for slan lerous may properly be joined: Reell 0.words spoken at the same time, canHoue, 28-2:50. So held in case of an not be joined in one action: Hinkle action on tort and one on contract: v. Daremport, 38-355. Turner r. First Nat'l B'k of Keokuk, As to joint action against a 26-562.

saloon-keeper and the owner of A cause of action upon a note may premises used for such purpose, see be joined with one upon an account: $ $ 15.7, 1558, and notes. Thorpe r'. Dickey, 51-676.

SEC. 2631. The plaintiff may strike from his petition ary cause Plaintiff may

of action or any part therof, at any time before the final submisstrike out sion of the case to the jury or to the court, when the trial is by the ceuse. R. ¿ 2815. court.

Sec. 2632. The court, at any time before the defense, shall, So may court.

R. 2810. on motion of the defendant, strike out of the petition any cause * or causes of action improperly joined with others.

Where the misjoinder is of causes | 46-44. of action against different parties this Section applied: Wilson v. Baker, section and the following one are not 52-423. applicable: Cogswellv. Murphy, I

SEC. 2633. All objections to the misjoinder of causes of actions Misioinder shall be deemed to be waived, unless made as provided in the waived.

1., 2817. last section. :

A misjoinder not taken advantagelin arrest: Grant v. McCarthy, 38of by motion before answer, can- 468. not be made the ground of a motion!

SEC. 2634. When a motion is sustained on the ground of mis- What done join der of causes of action, the court, on motion of the plaintiff,

when clis

9 missed for shall allow him, with or without costs in its discretion, to file sev- misjoinder.

R. & 2818. eral petitions, each including such of said causes of action as might have been joined, and action shall be docketed for each of said petitions, and the same shall be proceeded in without further service, and the court shall determine, by order, the time of pleading therein.

CHAPTER 8.

OF PLEADING.

SECTION 2635. The defendant shall, in an action commenced Demur ? Tiein a court of record, demur, answer, or do both as to the original Co. petition before noon of the second day of the term.

C. '51, é 1707. The filing of a counter claim in of an answer: Toron 0. Bringolf, proper time is equivalent to the filiniz | 17-133.

SEC. 2636. Each party shall demur, answer, or reply to all sub- same. sequent pleading, including amendments thereto and substitutes R$ 259, 263,

2838. therefor, before noon of the day succeeding that on which the pleading is filed. But all pleadings must be filed by the time the cause is reached for trial.

The plaintiff may file a reply later impose: Williams r. Niagara Fire than the time here fixed, upon such | Ins. Co., 50-561. reasonable terins as the court may 1

SEC. 2637. The day on which the judge actually opens court Time of plead. shall be, for the purpose of timing the pleading, considered the mine. first day of the term. Sec. 2638. The court may extend the time of filing any plead- Extension of.

R. 2 2859. ing beyond that herein fixed, but shall do so with due regard to k. making up issues at the earliest day possible.

The extension by the court of the the time fixed by the court for filing time for filing an answer does not de- an answer, should be stricken from the prive defendant of bis right to demur, | files: Dist. Tp. of Neuton v. White, nor do sit extend the time for filing | 42-608. such dem urrer. A demurrer filed at

llig pleiding

[ocr errors]
[ocr errors]

SEC. 2639. All motions assailing a pleading shall be in writing, Motions assail. and filed before an answer or reply has been filed to the pleading 2861, 2865, assailed, except as provided in section two thousand six hundred

and fifty of this chapter, and shall specify the causes on which they are founded, and none other shall be argued or considered. But one motion and one demurrer assailing such ploading shall be filed, unless such pleading be amended after the filing of a motion or demurrer thereto.

The filing of a demurrer waives! A motion after a motion or a deany error in overruling a motion to murrer after a demurrer to the same strike or to require a more specific pleading is not allowable: Riddle v. statement: Stineman v. Beath, 36 Backus, 36–430.

-73.

notion sus

[ocr errors]

SEC. 2640. A demurrer or motion assailing any pleading or Demurrer or count thereof, suspends the necessity of filing any other pleading

to such pleading or count until the same has been determined, pends other pleadings. and the next pleading shall be filed by noon of the day succeedR. 2 2867.

ing such determination.

[The printed Code has the words “the inorning"in the fourth line, precalling the words of the day,” etc., instead of the word “ noon "as in the original and here.)

Sec. 2641. All motions and demurrers shall be argued and Demurrers and submitted when filed, unless the adverse party is absent or demotions when required.

"sires time, in which case it shall be extended until the morning R. 2869.

of the succeeding day unless the cause is sooner reached for trial.

SEC. 2642. A motion or demurrer once filed, shall not be withNot with drawn without the consent of the adverse party entered thereon, drawn.

or of the court.

Sec. 2643. The filing of a pleading or motion in the clerk's Appearance office during a term, and a memorandum of such filing made in R$ 2871. the appearance docket within the time allowed, shall be equiva9 G. A. ch. 75, lent to filing the same in open court. 21.

Sec. 2641. All technical forins of action and pleailing, all Forms of ac, common counts, general issues, and all fictions are abolished, and R. 2872. smell hereafter the forms of pleading in civil actions, and the rules by C. '51, 2 1733.

which their sufficiency is to be determined, are those prescribed in this code.

Section applied: Halloway v. Grif-| For somewhat similar provision, see fith, 32-409, 413.

'S 2507.
Sec. 2645. Pleadings are the written staternents by the parties
Plendings de- of their respective claims and defenses, and are:
R. 6€ 28734. 1. The petition of the plaintiff;

2. The demurrer or answer of the defendant;
3. The demurrer or reply of the plaintiff;
4. The dumurrer of the defendant.

tion abolished.

[ocr errors]

PETITION.

That to con tnin. 1. 2 2875. C. 51, 2 1736.

Sec. 2016. The petition must contain:

1. The name of the court and county in which the action is brought;

2. The names of the parties to the action, plaintiffs and defendants, followed by the word “petition” if the proceedings are

« SebelumnyaLanjutkan »