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4. An action for taking, detaining, converting or injuring any goods or chattels, including action for their specific recovery.

5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereinafter enumerated.

6. An action against the sureties of any executor, administrator, collector or guardian on the official bond of their principal; within three years after the breach thereof complained of.

7. An action against bail; within three years after judgment against the principal; but bail may discharge himself by a surrender of the principal, at any time before final judgment against the bail.

8. Fees due to any clerk, sheriff or other officer, by the judgment of a court; within three years from the time of the judgment rendered, or of the issuing of the last execution therefor.

9. An action for relief, on the ground of fraud or mistake; the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting such fraud or mistake.

10. An action for the recovery of real property sold for the nonpayment of taxes, within three years after the execution of the sheriff's deed.

Code, s. 155; C. C. P., s. 34; 1895, c. 165; 1889, cc. 269, 218; 1899, c. 15, s. 71; 1901, c. 558, s. 23.

Note. For actions against bank officers, see s. 378.

In bastardy, see Bastardy, s. 260.

For action for recovery of land sold for taxes, see s. 2912.

396. Two years. Within two years

1. All claims against the several counties, cities and towns of this state, whether by bond or otherwise, shall be presented to the chairman of the board of county commissioners or to the chief officers of said cities and towns, as the case may be, within two years after the maturity of such claims, or the holders of such claims shall be forever barred from a recovery thereof.

2. An action to recover the penalty for usury.

Code, ss. 756, 3836; 1874-5, c. 243; 1876-7, c. 91, s. 3; 1895, c. 69.

Note. For statute giving personal representatives two years within which to settle, see ss. 144, 155.

For statute regulating conveyances by heir or devisee within two years, see s. 70.

For right of way of railroad, see ante Five Years (1).

For action on apprentice's bond, see s. 199.

For suit for redemption of land sold for taxes, see s. 2913.

397. One year. Within one year

1. An action against a sheriff, coroner or constable, or other public officer, for a trespass under color of his office.

2. An action upon a statute, for a penalty or forfeiture, where the action is given to the state alone, or in whole or in part, to the party grieved, or to a common informer, except where the statute imposing it prescribes a different limitation.

3. An action for libel, assault, battery or false imprisonment. 4. An action against a sheriff, or other officer, for the escape of a prisoner arrested or imprisoned on civil process.

5. An application for a widow's year's provision.

Code, s. 156; C. C. P., s. 35; 1885, c. 96.

Note. For time within which personal representative may bring action for wrongful death, see s. 59.

For minimum limit in contract of insurance, within which to bring suit, see Insurance, s. 4755.

For limit of time for creditors to present claims to personal representative, and effect, see s. 94.

398. Six months. Within six months

An action for slander.

Code, s. 157; C. C. P., s. 36.

Note. Claim against decedent disputed by personal representative, barred in six months, see s. 93.

399. All other actions, ten years. An action for relief not herein provided for must be commenced within ten years after the cause of action shall have accrued.

Code, s. 158; C. C. P., s. 37.

NOTE. Actions to try title to office, ninety days after induction into office, see s. 834.

VI. PARTIES.

400. Real party in interest; actions by assignees. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. But an action may be maintained by a grantee of real estate in his own name, whenever he or any grantor or other person through whom he may derive title, might maintain such action, notwithstanding the grant of such grantor or other conveyance be void, by reason of the actual possession of a person claiming under a title adverse to that of such grantor, or other person, at the time of the delivery of such grant or other conveyance. In the case of an assignment of a thing in action the action by the assignee shall be without prejudice to any setoff or other defense, existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due. Code, s. 177; C. C. P., s. 55; 1874-5, c. 256.

401. Who may sue for penalties. Where a penalty may be imposed by any law passed or hereafter to be passed, and it shall not be provided to what person the penalty is given, it may be recovered by any one who will sue for the same, and for his own use.

Code, s. 1212; R. C., c. 35, s. 47.

402. Suits for penalties brought in name of state. Whenever any penalty shall be given by statute, and it is not prescribed in whose name suit therefor may be commenced, the same shall be brought in the name of the state.

Code, s. 1213; R. C., c. 35, s. 48.

403. Action by purchaser under judicial sale. Any person let into possession under any judicial sale confirmed, where the title may be retained as a security for the price, shall be deemed the legal owner of the premises for all purposes of bringing suits for injuries thereto, after the day of sale, by trespass or wrongful possession. taken or continued, in the same manner as if the title had been conveyed to him on day of sale, unless restrained by some order of the court directing the sale; and the suit so brought shall be under the control of the court ordering the sale.

Code, s. 942; 1858-9, c. 50.

404. Action by executor or trustee. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.

Code, s. 179; C. C. P, s. 57.

405. Infants, etc., sue by guardian or next friend. In actions and special proceedings whenever any of the parties plaintiff are infants, idiots, lunatics, or persons non compos mentis, whether said infants, idiots, lunatics or persons non compos mentis, be residents or nonresidents of this state, said infants, idiots, lunatics or persons non compos mentis shall appear by their general or testamentary guardian, if they have any within the state; but if the action or proceeding be against such guardian, or if there be no such guardian, then said infants, lunatics or persons non compos mentis may appear by their next friend: Provided, however, that the duty of the state solicitors to prosecute in the case specified in chapter entitled Guardian shall not be affected by the provisions of this section.

Code, s. 180; 1893, c. 5; C. C. P., s. 58; 1870-1, c. 233; 1871-2, c. 95.

406. Infants, etc., defend by guardian ad litem. In all actions and special proceedings whenever any of the defendants are infants, idiots, lunatics, or persons non compos mentis, said infants, idiots, lunatics, or persons non compos mentis, shall defend by their general or testamentary guardian, if they have any within this state, whether said infants, idiots, lunatics, or persons non compos mentis, are residents or nonresidents of this state; and if said infants, idiots, lunatics, or persons non compos mentis, have no general or testamentary guardian within this state, and any of the defendants in said action or special proceeding shall have been summoned, then it shall be lawful for the court, wherein said action or special proceeding is pending, upon motion of any of the parties to the said action, or special proceeding, to appoint some discreet person to act as guardian ad litem, to defend in behalf of such infants, idiots, lunatics, or persons non compos mentis, and such guardian so appointed shall, if the cause in which he is appointed be a civil action, file his answer to the complaint within the time required for other defendants, unless such time be extended by the court for good cause, and if the cause in which he is so appointed be a special proceeding, a copy of the complaint, with the summons, shall be served on said guardian ad litem, and after twenty days' notice of said summons and complaint in such special proceeding, and after answer filed as above prescribed in such civil action, the court may proceed in the cause to final judgment, and decree therein in the same manner as if there had been personal service upon the said infant, idiot, lunatic, or person non compos mentis, defendants, and any decree or judgment in the case shall conclude the infant, idiot, lunatic, or person non compos mentis, defendants, as effectually as if he or they had been personally summoned.

Code, s. 181; C. C. P., 3. 59; 1870-1, c. 233, s. 5; 1871-2, c. 95, s. 2.
Note. See Rule 17 of Superior Court.

407. Guardian ad litem to file answer. Whenever any guardian. ad litem shall be appointed, he shall file an answer in said action or special proceeding, admitting or denying the allegations thereof; the costs and expenses of which said answer, in all applications to sell or divide the real estate of said infants, shall be paid out of the proceeds of the property, or in case of a division, shall be charged upon the land, if the sale or division shall be ordered by the court, and if not ordered in any other manner the court shall direct. Code, s. 182; 1870-1, c. 233, s. 4.

408. Married women. When a married woman is a party, her husband must be joined with her except that

1. When the action concerns her separate property, she may sue alone.

2. When the action is between herself and her husband, she may sue or be sued alone.

And in no case need she prosecute or defend by a guardian or next friend.

Code, s. 178; C. C. P., s. 56.

409. Who may be plaintiffs. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided.

Code, s. 183; C. C. P., s. 60.

410. Who may be defendants. Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein; and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or right of possession to real estate may be made party plaintiff or defendant, as the case may require, to any such action.

Code, s. 184; C. C. P., s. 61.

411. Several parties, how classed; action by one for a class. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff can not be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or where the parties may be very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

Code, s. 185; C. C. P., s. 62.

412. Persons severally liable, suit against. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action at the option of the plaintiff.

Code. s. 186; C. C. P., s. 63.

413. Persons jointly liable, suits against. In all cases of joint contracts of copartners in trade or others, suit may be brought and prosecuted on the same against all, or any number of the persons making such contracts.

Code, s. 187; R. C., c. 31, s. 84; 1871-2, c. 24, s. 1.

414. New parties by order of court; interpleader. The court either between the terms, or at a regular term, according to the nature

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