1862 Territory of Dakota Session Laws/Chapter 8/General Provisions
GENERAL PROVISIONS APPLICABLE TO THE WHOLE CODE.
CHAPTER I.—Process.
Style of all process. Sealed, signed, and dated.Sect. 594. The style of all process shall be “The Territory of Dakota, ——— county.” It shall be under the seal of court from whence the same shall issue, shall be signed by the clerk, and dated the day it issued.
If sheriff interested party, coroner acts for him.Sect. 595. An order for the provisional remedy or any other process, in an action wherein the sheriff is a party or is interested, shall be directed to the coroner. If both interested.If both these officers are interested, the process shall be directed to and executed by a person appointed by the court or judge.
Court may appoint special officer. Fees same as sheriff's.Sect. 596. The court or judge, for good cause, may appoint a person to serve a particular process or order, who shall have the same power to execute it which the sheriff has. The person may be appointed on the motion of the party obtaining the process or order, and the return must be verified by affidavit. He shall be entitled to the fees allowed to the sheriff for similar services.
CHAPTER II.—Duties of Clerks.
Writs and orders for provisional remedies.Sect. 597. All writs and orders for provisional remedies, and process of every kind, shall be issued by the clerks of the several courts. Before they shall be issued, a precipe shall be filed with the clerk demanding the same; which precipe shall be for the direction of the clerk, and not material to the papers in the case, after the issuing of such writ or process.
Shall file all papers.Sect. 598. It is the duty of the clerk of each of the courts to file together and carefully preserve, in his office, all papers delivered to him, for that purpose, in every action or special proceeding.
Shall indorse time of filing and return.Sect. 599. He shall indorse upon every paper filed with him the day of filing it; and upon every order for a provisional remedy and upon every undertaking given under the same, the day of its return to his office.
Enter names of defendant summoned and day served.Sect. 600. He shall, upon the return of every summons served, enter upon the docket the name of the defendant or defendants summoned, and the day of service upon each one. The entry shall be evidence of the service of the summons, in case of the loss thereof.
Keep records, books, &c.Sect. 601. He shall keep the records and books and papers appertaining to the court, and record its proceedings.
Certain rules of district courts apply to other courts.Sect. 602. The provisions of article eight, of title nine, prescribing the duties of clerks of the district court, shall, as far as they are applicable, apply to the clerks of other courts of record.
Other powers and duties.Sect. 603. The clerk of each of the courts shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the common law. In the performance of his duties he shall be under the direction of his court.
CHAPTER III.—Duties of Sheriffs.
Shall indorse time of receipt on papers.Sect. 604. The sheriff shall indorse upon every summons, order of arrest, or for the delivery of property, or of attachment or injunction, the day and hour it was received by him.
Shall execute summons, &c. If he fails to do so.Sect. 605. He shall execute every summons, order, or other process, and return the same as required by law; and if he fail to do so, unless he make it appear to the satisfaction of the court, that he was prevented by inevitable accident from so doing, he shall be amerced by the court in a sum not exceeding one thousand dollars, and shall be liable to the action of any person aggrieved by such failure.
Other powers and duties.Sect. 606. The sheriff shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the common law.
CHAPTER IV.—Miscellaneous Provisions.
Duties may be performed by deputy.Sect. 607. Any duty enjoined by this code upon a ministerial officer, and any act permitted to be done by him may be performed by his lawful deputy.
Affirmation same effect as oath.Sect. 608. Whenever an oath is required by this code, the affirmation of a person conscientiously scrupulous of taking an oath, shall have the same effect.
Time, how computed.Sect. 609. The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last; if the last day may be Sunday, it shall be excluded.
Right to a jury not impaired, when.Sect. 610. Section three hundred and eighty-eight shall not be construed to impair the right of a party to a jury, if he appear at the trial by himself or attorney, and demand the same.
Officer taking undertaking may require affidavit of qualifications.Sect. 611. The ministerial officer, whose duty it is to take security in any undertaking provided for by this code, shall have the right to require the person offered as surety, to make an affidavit of his qualifications, which affidavit may be made before such officer. The taking of such affidavit shall not exempt the officer from any liability to which he might otherwise be subject, for taking insufficient security.
Qualification of sureties.Sect. 612. The surety in every undertaking provided for by this code, must be a resident of this territory, and worth double the sum to be secured, beyond the amount of his debts, and have property liable to execution in this territory equal to the sum to be secured. Where there are two or more sureties in the same undertaking, they must in the aggregate have the qualifications prescribed in this section.
Judges of supreme court may revise their rules, when. Same rules apply to district courts.Sect. 613. The judges of the supreme court shall, at the first session of the supreme court, after this code shall take effect, and every two years thereafter, revise their general rules, and make such amendments thereto as may be necessary to carry into effect the provisions of this code; and they shall make such further rules, consistent therewith, as they may deem proper. The rules so made shall apply to the supreme court and the district courts.
CHAPTER V.—Provisions as to the Operations of the Code.
Cases arising not covered by this code.Sect. 614. Rights of civil action, given or secured by existing laws, shall be prosecuted in the manner provided by this code. If a case ever arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice.
Sect. 615.
When actions shall be conducted in conformity to this code.Sect. 616. Where, by statute, a civil action, legal or equitable, is given, and the mode of proceeding therein is prescribed, this code shall not affect the proceedings under such statute, until the legislature shall otherwise provide; but, in all such cases, as far as it may be consistent with the statute giving such action, and practicable under this code, the proceedings shall be conducted in conformity thereto. Where the statute designates, by name or otherwise, the kind of action, but does not prescribe the mode of proceeding therein, such action shall be commenced and prosecuted in conformity to this code; where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code, and proceeded in accordingly.
Take effect, when.Sect. 617. This act shall take effect from and after its passage.
- Approved May —, 1862.