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I. DEFINITIONS.

346. Remedies. Remedies in the courts of justice are divided into

1. Actions.

2. Special proceedings.

Code, s. 125; C. C. P., s. 1.

347. Actions. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment or prevention of a public offense.

Code, s. 126; C. C. P., s. 2; 1868-9, c. 277, s. 2.

348. Special proceedings. Every other remedy is a special proceeding.

Code, s. 127; C. C. P., s. 3.

349. Kinds of actions. Actions are of two kinds

1. Civil.

2. Criminal.

Code, s. 128; C. C. P., s. 4.

350. Criminal action. A criminal action is

1. An action prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof.

2. An action prosecuted by the state, at the instance of an individual, to prevent an apprehended crime against his person or property.

Code, s. 129; C. C. P., s. 5; Const., Art. IV, s. 1.

351. Civil action. Every other is a civil action.

Code, s. 130; C. C. P., s. 6.

352. Court means clerk, when. In those of the following enactments which confer jurisdiction or power, or impose duties, when the words "superior court," or "court," in reference to a superior court are used, they mean the clerk of the superior court, unless otherwise specially stated, or unless reference is made to a regular term of the court, in which cases the judge of the court alone is

meant.

Code, s. 132; C. C. P., s. 9..
Note. See s. 358.

II. GENERAL PROVISIONS.

353. Remedies not merged. Where the violation of a right admits both of a civil and a criminal remedy, the right to prosecute the one is not merged in the other.

Code, s. 131; C. C. P., s. 7.

354. One form of action. The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished, and there shall be hereafter but one form of action for the enforcement or protection of private rights, and the redress of private wrongs, which shall be denominated a civil action.

Code, s. 133; C. C. P., s. 12; Const., Art. IV, s. 1.

355. Parties known as plaintiff and defendant. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

Code, s. 134; C. C. P., s. 13.

356. How party may appear. A party may appear in actions or proceedings in which he is concerned either in person or by attorney. Code, s. 109; C. C. P., s. 423.

357. Feigned issues abolished. Feigned issues are abolished, and instead thereof, in the cases where the power formerly existed to order a feigned issue, or when a question of fact not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made by the judge, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.

Code, s. 135; C. C. P., s. 15.

358. Jurisdiction of clerk on procedure. The clerk of the superior court shall have jurisdiction to hear and decide all questions of practice and procedure in this court, and all other matters whereof jurisdiction is given to the superior court, unless the judge of said court, or the court at a regular term thereof, be expressly referred to. Code, s. 251; C. C. P., s. 108.

Note.

See s. 352.

III. LIMITATIONS, GENERAL PROVISIONS.

359. When action commenced. An action is commenced as to each defendant when the summons is issued against him.

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360. Run from cause of action accrued; objection taken by answer. Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute. But the objection that the action was not commenced within the time limited can only be taken by answer.

Code, s. 138; C. C. P., s. 17.

361. Deemed pleaded by insane party. On the trial of any action or special proceeding to which an insane person has been made a party, such insane person shall be deemed to have pleaded specially any defense, and shall on trial have the benefit of any defense, whether pleaded or not, that might have been made for him by his guardian or attorney under the provisions of this chapter. And the court, at any time before the action or proceeding is finally disposed of, may order the bringing in, by proper notice, of one or more of the near relatives or friends of such insane person, and may make such other order as it may deem necessary for his proper defense.

1889, c. 89, s. 2.

362. Disabilities. If a person entitled to commence an action, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either,

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution under sentence for a criminal offense;

Then such person may bring his action within the times herein limited, after the disability shall be removed, except in an action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents and services out of the same, when he shall commence his action, or make his entry, within three years next after the removal of the disability, and at no time thereafter.

Code, ss. 148, 163; C. C. P., ss. 27, 142; 1899, c. 78.
Note.

For disabilities in an action to recover land sold for taxes, see s. 2909.

363. Disability of marriage. In any action in which the defense of adverse possession is relied upon, the time computed as constituting such adverse possession shall not include any possession had against a feme covert during coverture prior to February thirteenth, one thousand eight hundred and ninety-nine.

1899, c. 78, ss. 2, 3.

364. Cumulative disabilities. When two or more disabilities shall co-exist at the time the right of action accrues, or when one disability shall supervene an existing one, the limitation shall not attach until they all be removed.

Code, ss. 149, 170; C. C. P., ss. 28, 49.

365. Disability must exist when right of action accrues. No person shall avail himself of a disability, unless it existed when his right of action accrued.

Code, s. 169; C. C. P., s. 48.

366. Defendant out of state; action begun, judgment enforced, when. If, when the cause of action accrue or judgment be rendered or docketed against any person, he shall be out of the state, action may be commenced, or judgment enforced, within the times herein. respectively limited, after the return of such person into this state, and if, after such cause of action shall have accrued or judgment rendered or docketed, such person shall depart from and reside out of this state, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action, or the enforcement of such judgment. This section shall apply to all actions that have accrued and judgments rendered, transferred or docketed since the twenty-fourth day of August, one thousand eight hundred and sixty-eight.

Code, s. 162; C. C. P., s. 41; 1881, c. 258, ss. 1, 2.

367. Death before limitation expires; action by or against executor, when. If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives after the expiration of that time, and within one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration, provided such letters are issued within ten years of the death of such person. But if the claim upon which such cause of action is based be filed with the personal representative within the time above specified, and the same shall be admitted by him, it shall not be necessary to bring an action upon such claim to prevent the bar: Provided, that no action shall be brought against the personal representative upon such claim after his final settle

ment.

Code, s. 164; C. C. P., s. 43; 1881, c. 80.

Note. See s. 91 et seq.

368. Time of stay by injunction or prohibition. When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action.

Code, s. 167; C. C. P., s. 46.

369. Time during controversy on probate of will or granting letters. In reckoning time when pleaded as a bar to actions, that period shall not be counted which elapses during any controversy on the probate of a will or granting letters of administration, unless there be an administrator appointed during the pendency of the action, and it be provided that an action may be brought against him.

Code, s. 168; C. C. P., s. 47.

370. New action within one year after nonsuit, etc. If an action shall be commenced within the time prescribed therefor, and the plaintiff be nonsuited, or a judgment therein be reversed on appeal, or be arrested, the plaintiff, or if he die and the cause of action survive, his heir or representative, may commence a new action within one year after such nonsuit, reversal, or arrest of judgment.

Code, ss. 142, 166; C. C. P., ss. 21, 45.

371. New promise must be in writing. No acknowledgment or promise shall be received as evidence of a new or continuing contract, from which the statutes of limitations shall run, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.

Code, s. 172; C. C. P., s. 51.

372. Admission by partner after dissolution; effect. No act, admission or acknowledgment by any partner after the dissolution of the copartnership, or by any of the makers of a promissory note or bond after the statute of limitation shall have barred the same, shall be received as evidence to repel the statute, except against the partner or maker of the promissory note or bond, doing the act or making the admission or acknowledgment.

Code, s. 171; C. C. P., s. 50.

373. Undisclosed partner. The statutes of limitations prescribed by law shall apply to a civil action brought against an undisclosed partner only from the time when such partnership became known to the plaintiff.

1893, c. 151.

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