and deposit in the post office. In either case, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication. In actions upon contracts for the direct payment of money, the court, in its discretion, may, instead of ordering publication, or may, after publication, appoint an attorney to appear for the nonresident, absent or concealed defendant, and conduct the proceedings on his part.

SEC. 32. Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: First. If the action be against the defendants jointly indebted upon a contract, he may proceed against the defendant served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendant served: or Second. If the action be against defendants severally liable, he may proceed against the defendants served, in the same manner as if they were only defendants.

SEC. 33. Proof of the service of the summons shall be as follows: First. If served by the sheriff or his deputy, the affidavit or certificate of such sheriff or deputy; or, Second. If by any other person, his affidavit thereof; or, Third. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post offce, if the same shall have been deposited; or, Fourth. The written admission of the defendant.

SEC. 34. In case of service otherwise than by publication, the certificate or affidavit shall state the time and place of the service.

SEC. 35. From the time of the service of the summons in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.

TITLE IV.

PLEADINGS.

SEC. 36. Pleadings defined.

37. Rules of pleadings by plaintiff and defendant.

39. Complaint, what to contain.

40. Demurrer to.

43. Amending.

44. Objections to by answer.

45. Waiver of objections to.

46. Answer what to contain.

47. Counter claims and cross demands.

49. Several defenses may be set up.

50. Demurrer to, sham pleadings.

51. Pleadings to be subscribed and verified.

52. Verification, when omitted.

53. Genuineness of written instrument admitted.

55. Manner of verifying pleadings.

56. Items of account need not be set forth.

57. Irrelevant matter.

58. Complaint to recover.

59. Judgment or other determination of court.

60. Conditions precedent.

61. Private statutes.

62. Libel or slander, in action for.

63. Truth may be alleged.

64. Several causes of action in one complaint.

65. Allegations, when taken as true.

66. Material allegations.

67. Answer after demurrer.

68. Amendment of pleadings and time for answering.

69. Plaintiff ignorant of defendant's name.

70. Pleadings, how construed.

71. Error, when to be disregarded.

SEC. 36. The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judg ment of the court.

SEC. 37. All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act.

SEC. 38. The only pleadings on the part of the plaintiff shall be the complaint, demurrer, or replication to the defendant's answer, and the only pleadings on the part of the defendant shall be a demurrer to the complaint, or a demurrer to the

replication, or an answer to the complaint. The demurrer or answer of the defendant, and the demurrer or replication of the plaintiff, shall be filed with the clerk, and a copy thereof served on the adverse party, or his attorney.

SEC. 39. The complaint shall contain: First. The title of the action, specifying the name of the court and the name of the county in which the action is brought, and the names of the parties to the action, plaintiff and defendant, and shall be addressed to a court of law or equity, as the case may be. Second. A statement of the facts constituting the cause of action, in ordinary and concise language. Third. A demand of the relief which the plaintiff claims. If the recovery of money, or damages, be demanded, the amount thereof shall

be stated.

SEC. 40. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either: First. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, Second. That the plaintiff has not the legal capacity to sue; or, Third. That there is another action pending between the same parties for the same cause; or, Fourth. That there is a defect or misjoinder of parties, plaintiff or defendant; or, Fifth. That several causes of action have been improperly united; or, Sixth. That the complaint does not state facts sufficient to constitute a cause of action; or, Seventh. That the complaint is ambiguous, unintelligible, or uncertain; or, Eighth. That the action has not been commenced within the time limited by law.

SEC. 41. The demurrer shall distinctly specify the ground upon which any of the objections to the complaint are taken. Unless it do so, it may be disregarded.

SEC. 42. The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein and answer the residue, or may demur and answer at the same time.

SEC. 43. If the complaint be amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments shall be served upon every defendant to be affected thereby, or upon his attorney, if he has appeared by attorney; the defendant shall answer in such time as may be ordered by the court, and judgment by default may be entered upon failure to answer, as in other cases.

SEC. 44. When any of the matters enumerated in section forty, do not appear upon the face of the complalnt, the objection may be taken by answer.

SEC. 45. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.

SEC. 46. The answer of the defendant shall contain: First. If the complaint be verified, a specific denial to each allegation of the complaint controverted by the defendant, or a denial thereof, according to his information and belief; if the complaint be not verified, then a general denial to each of such allegations, but a general denial shall only put in issue the material and express allegations of the complaint. Second. A statement of any new matter or counter-claim, constituting a defense, in ordinary and concise language. When the answer contains new matter, constituting a defense, the plaintiff may, within the same length of time allowed for answering, and subject to the same rules, reply to such new matter; and if he fail to do so, such new matter shall be taken as true, and deemed proved at the trial. If new matter of set-off and counter-claim be set up in the answer, the reply may contain matter of set-off and counter-claim, not embraced in the complaint, All new matter set up in the replication, shall be deemed denied by the defendant.

SEC. 47. The counter-claim mentioned in the last section, shall be one existing in favor of the defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First. A cause of action arising out of the transaction set forth in the complaint or answer, as the foundation of the plaintiff's claim, or defendant's defense, connected with the subject of the action. Second. In an action arising upon contract, any other cause of action arising also upon contract, and existing at the commencement of the action.

SEC. 48. When cross demands have existed between persons, under such circumstances, that if one had brought an action against the other, a counter-claim could have been set up, neither shall be deprived of the benefit thereof, by the assignment or death of the other; but the two demands shall be deemed compensated, so far as they equal each other.

SEC. 49. The defendant may set forth by answer as many defenses and counter-claims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.

SEC. 50. When the answer contains new matter, the plaintiff may, within the number of days by which the defendant

is, by the summons, required to answer, said days to be computed from the time of the service on the plaintiff, of such answer, demur to the same for insufficiency, stating in his demurrer the grounds thereof; and he may, also, within the same time, demur to one or more defenses, set up in the answer, and the defendant may in like manner demur to the plaintiff's replication. Sham and irrelevant answers, replications and defenses, and so much of any answer or replication as may be irrelevant, redundant or immaterial, may be stricken out on motion, and upon such terms as the court in its discretion may impose.

SEC. 51. Every pleading shall be subscribed by the party or his attorney, and when the complaint is verified by affidavit, the answer and replication shall be verified also, except as provided in the next section.

SEC. 52. The verification of the answer or replication, required in the last section, may be omitted when an admission of the truth of complaint or answer might subject the party to prosecution for felony or misdemeanor.

SEC. 53. When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the answer denying the same be verified.

SEC. 54. When the defense to an action is founded upon a written instrument, and a copy thereof is contained in the answer, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the replication denying the same be verified.

SEC. 55. In all cases of the verification of a pleading, the affidavit of the party shall state the same is true of his own knowledge, except as to matters which are therein stated on his information or belief, and as to those matters, that he believes them to be true. And where a pleading is verified, it shall be by the affidavit of the party, unless he be absent from the county where the attorney resides, or from some cause unable to verify it, or the facts are within the knowledge of his attorney, or other person verifying the same. When the pleading is verified by the attorney, or any other person except the party, he shall set forth in the affidavit the reasons why it is not made by the party. When a corporation is a party, the verification may be made by an officer thereof; or when the territory, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts, except that in actions prosecuted by the attorney general