Gambar halaman
PDF
ePub

Mode of defined.

R. 22810.

bly not requir

APPEARANCE.

SEC. 2626. The mode of appearance may be:

1. By delivering to the plaintiff or the clerk of the court a memorandum 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, if 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 Members of or answer any civil action or special proceeding, in any court General Assem of record, or inferior court, while such general assembly is in el to answer 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 July, the 25th day of December, or on any day of thanksgiving appointed by the president of the United States or by the governor of this state.

civil procced

session.

Nor any person on holidays.

[As amended by 15th G. A., ch. 10, The memorandum in writing need not in terms state that the defendant appears. If he files a pleading in the action, it will be sufficient. Such an appearance will be an appearance in court, although the court be not in session: Conklin v. Johnson, 34-266. A written memorandum of appear ance in a particular case held sufficient: Saw v. Nat'l State Bk., 49

179.

Appearance to object to the service of notice is a general appearance to the action: McFarland v. Lowry, 40-467.

Appearance waives any defect in service: Van Vark v. VanDam, 14232; Chiles v. Limback, 30-395.

adding the fourth subdivision.]

The rule that a special appearance to object to the notice confers jurisdiction, is applicable in proceedings before a justice: Church v. Crossman, 49-414.

Where the court has jurisdiction of the subject matter mere irregularity in the process, or its service, will be cured by voluntary appearance; so held in case of an appeal from a justice of the peace: Wilgus v. Gettings. 19-82. But a want of notice is not waived by appearance where notice is jurisdictional, except where a subsequent notice would have the effect to give jurisdiction Spurrier v. Wertner, 48-486; (and see note to S 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 jurisdic-fixed in the notice as provided. in tion: Rahn v. Greer, 37-627; so is an § 2600: Cibula v. Pitt's, etc., M’ƒ`g appearance to object to the sufficiency Co., 48-528. of a service upon a director of a corporation: Robertson v. Eldora R. & C. Co, 27-245; so is the filing of a motion for continuance: Stockdale v. Buckingham, 11-45; so is the filing of a motion to dissolve an at achment in attachment proceedings: Chittenden v. Hobbs, 9-117.

An appearance after default, to have the default set aside as being rendered on insufficient notice, is not such an appearance as will cure the defect in entering default without proper notice, such a case being different from an appearance before the default to object to the insufficiency

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

An appearance by motion to set aside a sheriff's sale is not an appearance to the original action: Osborn t. Cloud, 21-238.

An appearance of a party to testify as a witness, is not an appearance to the action: Nixon v. Downey, 42–78. | Defendant is not entitled to a continuance unless for cause shown when he has appeared in response to a notice, defective only in not naming the

Van, 12-523.

The presumption is that an attorney who appears for a party is authorized to do so: Potter r. Parsons, 14– 286; Harshey v. Blackmar, 20–161; but if the attorney is in fact not authorized, the party may be relieved against the judgment by direct action in equity to set it aside: Bryant v. Williams, 21-329.

As to appearance after default to cross-examine witnesses, see § 2873.

WHEN ALL DEFENDANTS ARE NOT SERVED.

cedure.
R. 2811.

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 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 all 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 no further delay shall be allowed to bring in the others, unless all that appear shall consent to such a delay,

REAL ESTATE.

third parties.

SEC. 2628. When a petition has been filed affecting real es- Pending of ctate, the action is pending so as to charge third persons with in notice to notice of its pendency, and while pending no interest can be ac- R. 42812. quired by third persons in the subject matter thereof as against 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 mortthe mortgagee in the mortgaged gage is being foreclosed is bound by premises: Knowles v. Rablin, 20- the decree therein: Crum v. Cotting, 101. 22-411.

The purchaser at a foreclosure sale is affected with notice of another foreclosure proceeding then pending as to the same property: Cooley r. Brayton, 16-10.7

A purchaser of real property is not charged with notice of a suit with respect thereto, to which neither he nor his grantor is a party: Parsons v. Hoyt, 24-154.

A purchaser, pendente lite, takes subject to an action pending against his grantor, affecting the tile, and the fact that the suit is subsequently dismissed without prejudice, and a new suit commenced, will not relieve him of notice: Ferrier v. Buzick, 6-258.

The fact that the grantor fraudulently conceals from the grantee the

is situated in another

county. R. 2843.

13 G. A. ch. 167, ¿ 16.

pendency of the action will not affect | Blanchard v. Ware, 37–305.
the force of the judgment as between Section applied: Sowden 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 action is brought, the plaintiff must, in order to affect third persons with constructive notice of the pendency of the action, file 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.

Ordinary and

OF JOINDER OF ACTIONS.

SECTION 2630. Causes of action of whatever kind, where each 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 same rights, and if suit on all may be brought and tried in that county, 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

not be.
R. 22844.
C. '51, 1751.

Plaintiff may strike out

cause.

R. 2845.

the order thereof.

Two causes of action which may be prosecuted by the same proceeding may properly be joined: Reed . Howe, 28-250. So held in case of an action on tort and one on contract: Turner e. First Nat'l B'k of Keokuk, 26-562.

A cause of action upon a note may be joined with one upon an account: Thorpe r. Dickey, 51-676.

Distinct causes of action in favor of two different parties, as for slanderous words spoken at the same time, cannot be joined in one action: Hinkle v. Davenport, 38-355.

As to joint action against a saloon-keeper and the owner of premises used for such purpose, see § § 1557, 1558, and notes.

SEC. 2631. The plaintiff may strike from his petition any cause of action or any part therof, at any time before the final submission of the case to the jury or to the court, when the trial is by the

court.

R. & 2816.

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

Section applied: Wilson v. Baker,

of action against different parties this
section and the following one are not 52-423.
applicable: Cogswell v. Murphy,!

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

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

R. 2847.

when dis

R. & 2818.

SEC. 2634. When a motion is sustained on the ground of mis- What done joinder of causes of action, the court, on motion of the plaintiff, missed for shall allow him, with or without costs in its discretion, to file sev- misjoinder. 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.

swer: when.

SECTION 2635. The defendant shall, in an action commenced Demur or auin a court of record, demur, answer, or do both as to the original R. 2819. petition before noon of the second day of the term.

The filing of a counter claim in of an answer: Town v. Bringolf, proper time is equivalent to the filing 17-153.

C. '51, 1737.

2858.

SEC. 2636. Each party shall demur, answer, or reply to all sub- same. sequent pleading, including amendments thereto and substitutes R. 2570, 251, 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 v. Niagara Fire than the time here fixed, upon such Ins. Co., 50-561. reasonable terms as the court may

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 ing first day of the term.

R. 22857.

R. 22859.

SEC. 2638. The court may extend the time of filing any plead- Extension of ing beyond that herein fixed, but shall do so with due regard to making up issues at the earliest day possible.

The extension by the court of the time for filing an answer does not deprive defendant of bis right to demur, nor does it extend the time for filing such demurrer. A demurrer filed at

the time fixed by the court for filing
an answer, should be stricken from the
files: Dist. Tp. of Newton v. White,
42-608.

2506.

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 ing pleading. R. 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 pleading shall be filed, unless such pleading be amended after the filing of a motion or demurrer thereto.

Demurrer or motion suspends other pleadings.

R. 2 2867.

motions when

The filing of a demurrer waives any error in overruling a motion to strike or to require a more specific statement: Stineman v. Beath, 36 -73.

A motion after a motion or a demurrer after a demurrer to the same pleading is not allowable: Riddle v. Backus, 36-430.

SEC. 2640. A demurrer or motion assailing any pleading or count thereof, suspends the necessity of filing any other pleading to such pleading or count until the same has been determined, and the next pleading shall be filed by noon of the day succeeding such determination.

[ocr errors]

[The printed Code has the words “the inorning" in the fourth line, preceding 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 desires time, in which case it shall be extended until the morning of the succeeding day unless the cause is sooner reached for trial.

required. R. 2869.

Not with-
drawn.
R. 2870.

Appearance
docket.
R. 2871.

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

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

21.

Forms of ac-
tion abolished.
R. 2872.
C. '51, 1733.

Pleadings defined.

R. 2873-4.

SEC. 2644. All technical forms of action and pleading, all common counts, general issues, and all fictions are abolished, and hereafter the forms of pleading in civil actions, and the rules by 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.

Grif§ 2507.

SEC. 2645. Pleadings are the written statements by the parties of their respective claims and defenses, and are:

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.

What to contain.

R. 2875.

C. 51, 1736.

[blocks in formation]

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 »