1862 Territory of Dakota Session Laws/Chapter 8/Title VII
TITLE VII.
PLEADINGS IN CIVIL ACTIONS.
CHAPTER I.—Pleadings in General.
The pleadings.Sect. 79. The pleadings are the written statements by the parties of the facts constituting their respective claims and defences.
Forms, as prescribed by this code.Sect. 80. The forms of pleading in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this code.
Only pleadings allowed.Sect. 81. The only pleadings allowed, are: 1. The petition by the plaintiff. 2. The answer or demurrer by the defendant. 3. The demurrer or reply by the plaintiff.
CHAPTER II.—The Petition.
The petition contains what.Sect. 82. The petition must contain: 1. The name of the court and the county in which the action is brought, and the names of the parties, plaintiff and defendant, followed by the word "Petition." 2. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. 3. A demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed, the time from which interest is to be computed shall also be stated.
When more than one cause of action.Sect. 83. Where the petition contains more than one cause of action, each shall be separately stated and numbered.
CHAPTER III.—Demurrer.
Defendant demur, whenSect. 84. The defendant may demur to the petition only when it appears on its face, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action. 2. That the plaintiff has not legal capacity to sue. 3. That there is another action pending between the same parties for the same cause. 4. That there is a defect of parties, plaintiff or defendant. 5. That several causes of action are improperly joined. 6. That the petition does not state facts sufficient to constitute a cause of action.
Shall specify, what.Sect. 85. The demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only, that the petition does not state facts sufficient to constitute a cause of action.
Objection by answer. If by neither demurrer or answer.Sect. 86. When any of the defects enumerated in section eighty-four, do not appear upon the face of the petition, the objection may be taken by answer; and no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.
When demurrer is sustained on ground of misjoinder.Sect. 87. When a demurrer is sustained on the ground of misjoinder of several causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the same shall be proceeded in without further service.
Defendant may demur to one or more, and answer remainder.Sect. 88. The defendant may demur to one or more of the several causes of action stated in the petition, and answer as to the residue.
CHAPTER IV.—Answer.
Answer contain, what.Sect. 89. The answer shall contain: 1. A general or specific denial of each material allegation of the petition controverted by the defendant. 2. A statement of any new matter constituting a defence, counter claim, or set-off in ordinary and concise language, and without repetition.
Same.Sect. 90. The defendant may set forth in his answer, as many grounds of defence, counter claim, and set-off as he may have. Each must be separately stated and numbered, and they must refer in an intelligible manner to the cause of action which they are intended to answer.
Counter claim.Sect. 91. The counter claim, mentioned in the last section, must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action.
If defendant omits to set up counter claim or set-off.Sect. 92. If the defendant omit to set up the counter claim or set-off, he cannot recover costs against the plaintiff on any subsequent action thereon; but this section shall not apply to causes of action which are stricken out of, or withdrawn from the answer, as provided in sections ninety-three and one hundred and sixteen.
When new party is necessary to decision of counter claim.Sect. 93. When it appears that a new party is necessary to a final decision upon the counter claim, the court may either permit the new party to be made by a summons, to reply to the counter claim, or may direct the counter claim to be stricken out of the answer, and made the subject of a separate action.
Set-off.Sect. 94. A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract, or ascertained by the decision of the court.
When new party is necessary to decision of set-off.Sect. 95. When it appears that a new party is necessary to a final decision upon the set-off, the court shall permit the new party to be made, if it also appear that, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim, unless permitted to use it as a set-off.
Sect. 96. When cross demands have existed between When cross demands have existed.persons under such circumstances, that if one had brought an action against the other, a counter claim or set-off could have been set up, neither can be deprived of the benefit thereof, by the assignment or death of the other, but the two demands must be deemed compensated, so far as they equal each other.
Guardians or attorneys shall answer.Sect. 97. The guardian of an infant or person of an unsound mind, or attorney for a person in prison, shall deny in the answer all material allegations of the petition prejudicial to such defendant.
CHAPTER V.—Reply.
No reply, except when.Sect. 98. There shall be no reply, except upon the allegation of a counter claim or set-off in the answer.
Reply contain, what.Sect. 99. When the answer contains new matter, constituting a counter claim or set-off, the plaintiff may reply to such new matter, denying generally or specifically each allegation controverted by him; and he may allege, in ordinary and concise language and without repetition, any new matter not inconsistent with the petition, constituting a defence to such new matter in the answer; or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof; and he may demur to one or inore of such defences set up in the answer, and reply to the residue.
CHAPTER VI.—General Rules of Pleadings.
Papers filed, when.Sect. 100. The answer or the demurrer by the defendant, and the reply or demurrer by the plaintiff, shall be filed within such times as may be required by rules to be adopted by the court in which the action is pending.
Time may be extended.Sect. 101. The court or the judge thereof in vacation, for good cause shown, may extend the time for filing an answer or reply, upon such terms as may be just.
Pleadings must be subscribed.Sect. 102. Every pleading in a court of record must be subscribed by the party or his attorney.
Pleading of fact must be verified by affidavit.Sect. 103. Every pleading of fact must be verified by the affidavit of the party, his agent or attorney. A pleading verified as herein required shall not be used against a party in any criminal prosecution or action or proceeding for a penalty or forfeiture, as proof of a fact admitted or alleged in such pleading; and such verification shall not make other or greater proof necessary on the side of the adverse party.
Verification not required, when.Sect. 104. The verification mentioned in the last section shall not be required to the answer of a guardian defending for an infant or person of unsound mind, or a person imprisoned; nor in any case where the admission of the truth of a fact stated in the pleading might subject the party to a criminal or penal prosecution.
Affidavit may be made by one or several parties.Sect. 105. If there be several persons united in interest and pleading together, the affidavit may be made by any one of such parties.
Belief of affiant sufficient.Sect. 106. The affidavit shall be sufficient if it state that the affiant believes the facts stated in the pleading to be true.
Affidavit by non-resident or absentee.Sect. 107. In all cases where the party pleading is a non-resident of the county in which the action is brought, or if he shall be absent from the county where the pleading is filed, an affidavit made before filing the pleading, stating the substance of the facts afterwards inserted in the pleading, shall be a sufficient verification. Such affidavit shall be filed with the pleading intended to be verified thereby.
Affidavit made before whom.Sect. 108. The affidavit verifying pleadings may be made before any person before whom a deposition might be taken, and must be signed by the party making the same; and the officer before whom the same was taken, shall certify that it was sworn to or affirmed before him, and signed in his presence. The certificate of such officer, signed officially by him, shall be evidence that the affidavit was duly made, that the name of the officer was written by himself, and that he was such officer.
Verification does not apply to amount claimed.Sect. 109. The verification of the pleading does not apply to the amount claimed, except in actions founded on contracts express or implied, for the payment of money only.
When made by agent or attorney.Sect. 110. When the affidavit is made by the agent or attorney, it must set forth the reason why it is not made by the party himself. It can be made by the agent or attorney only. 1. When the facts are within the personal knowledge of the agent or attorney. 2. When the plaintiff is an infant, or of unsound mind, or imprisoned. 3. When the pleading to be verified is founded upon a written instrument for the payment of money only, and such instrument is in the session of the agent or attorney. 4. When the party is not a resident of or is absent from the county.
Construction of pleading liberal.Sect. 111. In the construction of any pleading, for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties.
Fictions abolished.Sect. 112. All fictions in pleading are abolished.
Title cannot be changed.Sect. 113. The title of a cause shall not be changed in any of its stages.
In action relating to account, note, bill, &c., copy must be attached.Sect. 114. If the action, counter claim or set-off be founded on an account, or on a note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading, excepting in actions founded upon notes issued to circulate as money. If not so attached and filed, the reason thereof must be shown in the pleading.
When pleading may be altered.Sect. 115. If redundant, scandalous, or irrelevant matter be inserted in any pleading, it may be stricken out on motion of the party prejudiced thereby. And when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment.
When and how counter claim or set-off may be withdrawn and made subject of new action.Sect. 116. The court, at any time before the final submission of the case, on motion of the defendant, may allow a counter claim or set-off, set up in the answer, to withdrawn, and the same may become the subject of another action. On motion of either party, to be made at the time such counter claim or set-off is withdrawn, an action on the same shall be docketed and proceeded in as in like cases after process served; and the court shall direct the time and manner of pleading therein. If an action be not so docketed, it may afterwards be commenced in the ordinary way.
Special jurisdiction, how established.Sect. 117. In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination was duly given or made. If such allegation be controverted, the party pleading must establish, on the trial, the facts conferring jurisdiction.
Performance of conditions, how established.Sect. 118. In pleading the performance of conditions precedent in a contract, it shall be sufficient to state, that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.
In action upon account, promissory note, &c., copy sufficient, &c.Sect. 119. In an action, counter claim or set-off, founded upon an account, promissory note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and indorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum, which he claims with interest. When others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties in the action, it shall be necessary to state also the kind of liability of the several parties, and the facts, as they may be, which fix their liability.
Pleading a private statute.Sect. 120. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.
Actions for libel or slander.Sect. 121. In an action for a libel or slander, it shall be sufficient to state generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial, the facts, showing that the defamatory matter was published or spoken of him.
Same.Sect. 122. In the actions mentioned in the last section, the defendant may allege the truth of the matter charged as defamatory, and may prove the same, and any mitigating circumstances to reduce the amount of damages, or he may prove either.
Action for recovery of real property.Sect. 123. In an action for the recovery of real property, it shall be described with sufficient certainty, as will enable an officer holding an execution to identify it.
Material allegations not controverted, taken as true.Sect. 124. Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer, constituting a counter claim or set-off, not controverted by the reply, shall, for the purposes of the action, be taken as true; but the allegation of new matter in the answer, not relating to a counter claim or set-off, or of new matter in reply, shall be deemed to be controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. Exception.Allegations of value, or of amount of damage, shall not be considered as true, by failure to controvert them.
A material allegation is what.Sect. 125. A material allegation in a pleading, is one essential to the claim or defence, which could not be stricken from the pleading, without leaving it insufficient.
What need not be stated in pleading.Sect. 126. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the pleading.
If original pleading is lost.Sect. 127. If an original pleading be lost, or withheld by any person, the court may allow a copy thereof to be substituted.
CHAPTER VII.—Mistakes in Pleading and Amendments.
Variance between pleading and proof.Sect. 128. No variance between the allegation in pleading and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice, in maintaining his action or defence upon the merits. Whenever it is alleged, that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as may be just.
When variance not material.Sect. 129. When the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.
When allegation in general is unproved.Sect. 130. When, however, the allegation of the claim or defence, to which the proof is directed, is unproved, not in some particular, or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.
Petition may be amended, when and how.Sect. 131. The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceeding; but notice of such amendment shall be served upon the defendant, or his attorney, and the defendant shall have the same time to answer or demur thereto, as to the original petition.
Adverse party may amend within ten days.Sect. 132. At any time within ten days after a demurrer is filed, the adverse party may amend, of course, on payment of costs since filing the defective pleading. Notice of filing an amended pleading, shall be forthwith served upon the other party, who shall have the same time thereafter to answer, or reply thereto, as to an original pleading.
If demurrer overruled, party may answer or reply.Sect. 133. Upon a demurrer being overruled, the party who demurred may answer or reply, if the court be satisfied that he has a meritorious claim or defence, and did not demur for delay.
Court may amend, what and when.Sect. 134. The court may, before judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved. And whenever any proceeding taken by a party fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto, by amendment.
Court must disregard errors or defects which do not affect rights.Sect. 135. The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.
Demurrer sustained, adverse party may amend.Sect. 136. If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or without cost, as the court in its discretion shall direct.
In case of amendment requiring time, continuance may be granted.Sect. 137. When either party shall amend any pleading or proceeding, and the court shall be satisfied by affidavit, or otherwise, that the adverse party could not be ready for trial in consequence thereof, a continuance may be granted to some day in term, or to another term of the court.
When name of defendant unknown.Sect. 138. When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description; and when his true name is discovered, the pleading or proceeding may be amended accordingly. The plaintiff in such case must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words, "real name unknown," and a copy thereof must be served personally upon the defendant.
Supplemental petition, answer or reply.Sect. 139. Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case, occurring after the former petition, answer or reply.
When two or more actions pending may be joined.Sect. 140. Whenever two or more actions are pending in the same court, which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated; and if no such cause be shown, the said several actions shall be consolidated.
Order for consolidation, how made.Sect. 141. The order for consolidation may be made by the court, or by a judge thereof, in vacation.
Sect. 142. • • • Sect. 143. • • • Sect. 144. • • • Sect. 145. • • • Sect. 146. • • • Sect. 147. • • • Sect. 148. • • • Sect. 149. • • • Sect. 150. • • • Sect. 151. • • • Sect. 152. • • • Sect. 153. • • • Sect. 154. • • • Sect. 155. • • • Sect. 156. • • • Sect. 157. • • • Sect. 158. • • • Sect. 159. • • • Sect. 160. • • • Sect. 161. • • • Sect. 162. • • • Sect. 163. • • • Sect. 164. • • • Sect. 165. • • • Sect. 166. • • • Sect. 167. • • • Sect. 168. • • • Sect. 169. • • • Sect. 170. • • •