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FORMS OF COMPLAINTS.
Having stated in chapter V, the constitutional jurisdiction of the different Courts, under the new Constitution of California, and premising that Justices' Courts and the Supreme Court of Nevada have similar jurisdiction to the Courts of the same name in California, while the jurisdiction of the District Courts in Nevada corresponds to that of the Superior Courts in California, it would be easy for most persons to determine from the reading of the following complaints, in what Court the action or proceeding should be had, even if there were no title to the former, serving as a guide.
Complaints, answers, and demurrers, are called pleadings in legal proceedings. A complaint is a formal statement in writing, and in ordinary and concise language, of the facts which constitute a cause of action, made by a person who brings the suit, and is called a "plaintiff,” against some other
who is called a “defendant." An answer is a statement, generally in writing, made by the “ defendant,” of facts which he may believe to constitute a defense against the complaint of the “plaintiff.”
A demurrer is an objection, in writing, to the legal sufficiency of the complaint, when made by the defendant; or to the legal sufficiency of the answer, when made by the plaintiff.
When complaints fail to state legal causes of action, or fail to comply with the legal requirements of a complaint, they will be successfully demurred to; and when answers fail in like particulars, they, too, will prove of no value unless amended.
Pleadings in Justices' Courts are often oral, particularly answers; and pleadings in those Courts are not held to the same strictness as pleadings in Courts of Record.
Let us now suppose that a firm or partnership consisting of William Irwin and J. W. Stewart, does a lumbering business in the town of Bodie, Mono County, California,
under the name of J. W. Stewart & Co., and that such firm sold lumber to J. W. Crocker some time in August, 1879, amounting in value to one hundred and thirteen dollars and fifty-three cents. That Mr. Crocker promised to pay for the lumber in September following, and that failing to do so, on the fifth day of October, 1879, the firm brought suit against him to recover the amount. The complaint might read thus:
Form 17.-For Merchandise Sold and Delivered.
In Justice's Court of Bodie Township, County of Mono and
State of California, before Thos. Newman, Esq., Justice of the Peace. Wm. Irwin and J. W. Stewart, partners, doing business under the firm name and style of
The above-named plaintiff, Wm. Irwin and J. W. Stewart, partners, doing business under the firm name and style of J. W. Stewart & Co., complain of the defendant above mentioned, J. W. Crocker, and for cause of action say:
That between the first day of August and the first day of September of A.D. 1879, at the Town of Bodie, County of Mono and State of California, the plaintiffs bargained, sold, and delivered to said defendant, at defendant's special instance and request, certain merchandise, to wit: lumber and materials of the full value of one hundred and thirteen dollars and fiftythree cents in gold coin;
That in consideration of said sale and delivery, the said defendant then and there undertook and promised to pay the said sum of money to plaintiffs whenever thereafter requested so to do;
That plaintiffs have often requested the defendant to pay said sum, but to pay the same, or any part thereof, defendant has hitherto wholly neglected and failed, and still does neglect and fail, to plaintiff's damage, in the sum of one hundred and thirteen dollars and fifty-three cents.
Wherefore, plaintiffs demand judgment against said defendant for the sum of one hundred and thirteen dollars and fiftythree cents, in gold coin, besides costs of this action.
H. A. G
Attorney for Plaintiffs.
Form 18.-Verification by a Book-keeper. State of California
County of Mono. Geo. H. Winterburn, being duly sworn, says that he is clerk and book-keeper of the plaintiffs above named, and was such at the times stated in the foregoing complaint, and when said lumber and materials were sold and delivered to said defendant, as therein stated; that he has read the said complaint, and understands the contents thereof, and that the same is true of his own knowledge, wherefore he verifies the same.
G. H. WINTERBURN. Subscribed and sworn to before me, this fifth day of October, A. D. 1879.
Justice of the Peace.
In connection with the foregoing complaint, it will be proper to say that, by virtue of the general rules of law, the names of all the partners constituting a firm, must, if the company (i. e., the partnership) brings suit, be set out in the complaint; bat by virtue of a statute of Nevada, if the defendants be a partnership, and the names of the partners constituting the firm be unknown to the plaintiff, he may bring suit against them under the name by which they are generally known. In most States, however, where the names of persons constituting a partnership are unknown to the plaintiff, he may use fictitious names for the partners, in his complaint, and wben he discovers their real names, ask the Court to substitute the real for the fictitious names; and this practice would be good and safe in Nevada, notwithstanding the statute.
Fearing that the California Forms of process which have been given, may mislead some person in the State of Nevada, or some other State or Territory, the style of a simple form of complaint, with a summons and a writ of attachment proper in the State of Nevada, will now be given, premising that for purposes of illustration any familiar and treasured names are used freely in this work, but without malice or unkind thought.
Form 19.—Complaint against Makers and Indorser of a
In the District Court of the First Judicial District of the State
of Nevada, in and for the County of Storey. The Nevada Bank of San Francisco, a Corporation,
A. M. Peters, G. H. Peters, and
The Nevada Bank of San Francisco, plaintiff above named, complains of A. M. Peters, G. H. Peters and Wm. Myers, and for cause of complaint alleges:
That plaintiff is, and at the times hereinafter mentioned was, a corporation duly organized and existing under and by virtue of the laws of the State of California, engaged in the business of banking, selling exchange, receiving deposits, and of loaning money in said State, and also in the State of Nevada.
That on the third day of October, A. D. 1878, the defendants, A. M. Peters and G. H. Peters, by their promissory note, promised to pay to the defendant, Wm. Myers, or order, at the agency
of the Nevada Bank of San Francisco in the City of Virginia, County of Storey, and State of Nevada, on the third day of November, A. D. 1878, three hundred and eighty-four dollars ($384.00) in gold coin of the United States, with interest in like gold coin, from date, at the rate of one and one half (1) per cent. per month until paid, payable monthly, and if not so paid, to become part of the principal, and bear like rate of interest.
That prior to the maturity of said note, the said Wm. Myers indorsed the same to the plaintiff, and at the same time made upon the back of said note the following indorsement, to wit: “For value received, I hereby waive presentation of this note to the makers, demand of payment, protest, and notice of nonpayment.
“WM. MYERS." That defendants, or either of them, have not paid said note and interest, or any part thereof.
Wherefore plaintiff demands judgment for the sum of three hundred and eighty-four dollars principal sum, besides interest, as provided in said pote, all in gold coin of the United States, and for costs of this action.
JOHN KNOX BROWN,
Form 20.–Verification by an Attorney. State of Nevada,
County of Storey, John Knox Brown, being duly sworn, says that he is attorney for the plaintiff in the above-entitled action; that he has read the foregoing complaint and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated on information or belief, and as to those matters, that he believes it to be true, and that the reason why he verifies this complaint is because there is not at this date any officer of said corporation, plaintiff, in the said county of Storey.
JOHN K. BROWN. Subscribed and sworn to before me, this twenty-first day of April, A. D. 1879.
ROBt. E. LOWERY,
Notary Public, Storey County. We will now suppose that the foregoing complaint is filed with the clerk of the District Court for Storey County, and that a summons issued thereon in the following:
Form 21.–Summons in District Court.
[BANCROFT's BLANK, No. 613.] In the District Court of the first Judicial District of the State
of Nevada, in and for the county of Storey. The Nevada Bank of San Francisco, a Corporation,
A. M. Peters, G. H. Peters, and
Defendants. Action brought in the District Court of the First Judicial District of the State of Nevada, in and for the county of Storey, and the complaint filed in said county in the office of the clerk of said District Court, on the twenty-first day of April, A. D. 1879. The State of Nevada sends greeting to A. M. Peters, G. H.
Peters and Wm. Meyers, defendants. You are hereby required to appear in an action brought against you by the above-named plaintiff in the District Court of the First Judicial District of the State of Nevada, in and for the county of Storey, and answer the complaint filed therein within ten days (exclusive of the day of service) after the service on you of this summons, if served in said county, or, if