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Section 1. There shall be in this territory but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be the same at law and in equity.
Sec. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant.
Sec. 3. When a question of fact, not put in issue by the pleadings, is to be tried by a jūry, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.
Sec. 4. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act.
Sec. 5. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence 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.
Sec. 6. An executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person or persons 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.
Sec. 7. When a married woman is a party, her husband shall be joined with her, except that: First. When the action concerns her separate property she may sue alone. Second. When the action is between herself and her husband she may sue or be sued alone.
Sec. 8. If a husband and wife be sued together, the wife may c defend for her own right.
Sec. 9. When an infant is a party he shall appear by guardian, who may be appointed by the court in which the action was prosecuted, or by a judge thereof, or a probate judge.
Sec. 10. The guardian shall be appointed as follows: First. When the infant is plaintiff
, upon the application of the infant; if he be of the age of fourteen years, or if under [that] age, upon the application of a relative or friend of the infant. Second. When the infant is defendant, upon the application of the infant; if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then, upon the applica
tion of any other party to the action, or of a relative or friend of the infant.
Sec. 11. A father, or, in case of his death or desertion of his family, the mother may maintain an action for the injury or death of a child; and a guardian for the injury or death of his ward.
Sec. 12. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this act.
Sec. 13. 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 question involved therein.
Sec. 14. Of the parties to the action, those who are united in interest shall be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot 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 when the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.
Seć. 15. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action at the option of the plaintiff
. Sec. 16. An action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or other disability of a party, the court, on motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.
Sec. 17. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in.
Sec. 18. When, in a civil action, a person not a party thereto, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in, and upon due service upon the adverse party of his complaint, or answer, the same proceedings shall be had as if he had been an original party to the action.
Sec. 19. A defendant, against whom an action is pending upon a contract, or for specific, real, or personal property, may at any
time before answer, upon affidavit that a person not a party to the
upon the contract or transaction, whenever after the former action a new cause of action arises therefrom.
Sec. 21. Whenever two or more actions are pending at one time, between the same parties and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated into one.
Sec. 22. An action may be brought by one person against another for the purpose of determining an adverse claim, which the latter makes against the former for money or property, upon an alleged obligation ; and also against two or more persons for the purpose of compelling one to satisfy a debt due to the other, for which the plaintiff is bound as security.
Sec. 23. Actions to be tried in county where property is situated.
Section. 23. Except when otherwise provided, actions for the following causes shall be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, as provided in this act :
First. For the recovery of real property or of an interest therein, or for the determination in any form of such right or interest, and for injuries to real property. Second. For the partition of real property. Third. For the foreclosure of a mortgage of real property : Provided, That where such real property is situated partly in one county and partly in another, the plaintiff may
select either of said counties, and the county so selected shall be the proper county for the trial of any or all of such actions as are mentioned in this section.
Sec. 24. Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial. First. For the recovery of a penalty or forfeiture imposed by statute, except that when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offence was committed. Second. Against a public officer or person especially appointed to execute his duties, for an act done by him in virtue of bis office, or against a person who, by his command, or in his aid, does anything touching the duties of such officer.
Sec. 25. In all other cases, the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or where the plaintiff resides, and the defendants or any of them may be found; or, if none of the defendants reside in the territory, or, if residing in the territory, the county in which they so reside be unknown to the plaintiff
, the same may be tried in any county which the plaintiff may designate in his complaint; and if any defendant or defendants may be about to depart from the territory, such action may be tried in any county where either of the parties may reside, or service be had. Actions upon contracts may be tried in the county in which the contract was to be performed ; and actions for torts, in the county where the tort was committed ; subject, however, to the power of the court to change the place of trial as provided in this act.
Sec. 26. When a county shall be attached to another county, for judicial purposes, actions arising or triable therein, of which a district court shall have exclusive jurisdiction, shall be commenced and tried in the county to which such county may be so attached.
Sec. 27. The court may, on good cause shown, change the place of trial, in the following cases :
First. When the county designated in the complaint is not the proper county. Second. When there is reason to believe that an impartial trial cannot be had therein. Third. When the convenience of witnesses and the ends of justice would be promoted by the change. Fourth. When, from any cause, the judge is disqualified from acting in the action.
Provided, the court shall not change the place of trial for the disqualification of the district judge, in any case where the judge of another district court will appear and try the action.
OF THE MANNER OF COMMENCING CIVIL ACTIONS.
Sec. 28. Actions—how commenced.
Sec. 35. Clerk to make out copy of complaint on request of the plaintiff.
Sec. 36. Summons-hou served.
Sec. 28. Civil actions in the district courts and probate courts shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon : Provided, That after the filing of the complaint, a defendant in the action may enter his appearance therein, which appearance shall be equivalent to personal service of the summons upon him.
Sec. 29. The clerk shall endorse on the complaint the day, month, and year the same is filed ; and at any time within one year after
the filing of the same, the plaintiff may have a summons issued. The summons shall be signed by the clerk and directed to the defendant and be issued under the seal of the court.
Sec. 30. The summons shall state the parties to the action, the conrt in which it is brought, the county in which the complaint is filed, the cause and general nature of the action, and require the defendant to appear and answer the complaint within the time mentioned in the next section, after the service of the summons, exclusive of the day of service, or that judgment by default will be taken against him according to the prayer of the complaint,