CHAPTER LXVL

CIVIL ACTIONS.

211-218. Kinds-arise, how-"trial" defined-issues of law and fact, how tried-waiver of jury-notice of trial-note of issue. 219-222. On calendar, how disposed of either party may bring on trial-separate trial in case of several defendants-continuances. 310-314. Exempt property-what is exempt-ex

223-231. Jury, how impannelled-jury fee-ballots, how kept-challenges-order of trial -view-illness of juror-sheriff to provide food, etc.-papers to be taken by jury. 232-234. Court always open to receive verdictpolling Jury-insufficient verdict-record of verdict-duty of clerk-disagreeing juror.

81. Forms of actions abolished-civil action. The distinction between actions at law and suits in equity, and the forms of all such actions and suits, are abolished; and there shall be in this state but one form of action, for the enforcement or protection of private rights, and the redress of private wrongs; which shall be called a civil action.

6 M. 284 (420); 12 M. 221; 13 M. 518; 14 M. 384.

§ 2. Parties, how styled. The party complaining shall be known as the plaintiff, and the adverse party as the defendant.

TITLE 2.

THE TIME OF COMMENCING ACTIONS.

§3. Limitations of actions. Actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues, except where in special cases a different limitation is prescribed by statute.

9 M, 54 (64).

§ 4. Actions to recover real property. No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appears that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question, within twenty years before the commencement of the action. The periods prescribed in the preceding section for the commencement of actions, are as follows:

$5. Actions upon judgments or decrees. Within ten years:

First. An action upon a judgment or decree of a court of the United States, or of any state or territory of the United States.

2 M. 201 (241.)

$6. Actions upon contracts, etc., within six years. Within six years:

First. An action upon a contract or other obligation, express or implied, excepting those mentioned in the preceding section;

9 M. 1 (13); 9 M. 54 (64); Ozmun v. Reynolds, 11 M. (459); 12 M. 522.

Second. An action upon a liability created by statute, other than those upon a penalty or forfeiture;

Third. An action for trespass upon real property;

Fourth. An action for taking, detaining, and injuring personal property, including actions for the specific recovery thereof;

Fifth. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on obligation, and not hereinafter enumerated;

Sixth. An action for relief, on the ground of fraud; the cause of action in such case not to be deemed to have accrued, until the discovery by the aggrieved party of the facts constituting the fraud.*

22 M. 287.

Seventh. Actions to enforce a trust or compel an accounting, where the trustee has neglected to discharge his trust, or has repudiated the trust relation, or has fully performed the same. (As amended 1877, c. 24, § 1.)

$7. Actions against certain officers, or for a penalty. Within three years:

First.-An action against a sheriff, coroner or constable, upon a liability by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected

upon an execution.

Second.-An action upon a statute for a penalty or forfeiture, where the *NOTE. As to actions to set aside judgments for fraud, see post § 285.

action is given to the party aggrieved, or to such party and the state of Minnesota.

§ 8. Action for libel, etc., within two years. Within two years: First.-An action for libel, slander, assault, battery, or false imprisonment.

Second. An action upon a statute for a forfeiture or penalty to the state. § 9. Action upon mutual and current account accrues, when. In an action brought to recover a balance due upon a mutual, open and current account, when there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side.

17 M. 469.

§ 10. Action for penalty given to prosecutor within one year. Every action upon a statute for a penalty given, in whole or in part, to the person who prosecutes for the same, shall be commenced by said party within one year after the commission of the offence; and if the action is not commenced within one year by a private party, it may be commenced within two years thereafter on behalf of the state, by the attorney general, or the county attorney of the county where the offence was committed.

§ 11. Action to foreclose mortgage. Every action to foreclose a mortgage upon real estate, shall be commenced within ten years after the cause of action accrues. (As amended 1870, c. 60, § 1.)

20 M. 264, 453; 23 M. 328.

$12. Limitations apply to actions in name of state or officer. The limitations prescribed in this chapter for the commencement of actions shall apply to the same actions when brought in the name of the state, or in the name of any officer, or otherwise, for the benefit of the state, in the same manner as to actions brought by citizens.

§ 13. Action, when deemed commenced and pending. An action is commenced as to each defendant, when the summons is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him; and is deemed to be pending from the time of its commencement, until its final determination upon appeal, or until the time for an appeal has passed, and the judgment has been satisfied.

3 M. 58 (106.)

§ 14. Attempt to commence action, when equivalent to commencement. An attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of this chapter, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided; or if a corporation is a defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business; but such an attempt shall be followed by the first publication of the summons, or the service thereof, within sixty days.

§ 15. Effect of absence from the state. If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited after his return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is not part of the time limited for the commencement of the action.

14 M 268; 19 M. 488; 23 M. 328.

§ 16. Limitation, when cause of action accrues out of the state. When a cause of action has arisen in a state or territory out of this state, or in a foreign country, and, by the laws thereof, an action thereon cannot there be maintained by reason of the lapse of time, an action thereon cannot be maintained in this state, except in favor of a citizen thereof, who has had the cause of action from the time it accrued.

9 M. 54 (64); 13 M. 390.

§ 17. Period of disability excluded in certain cases. If a person entitled to bring an action mentioned in this chapter, except for a penalty or forfeiture, is, at the time the cause of action accrued, either

First. Within the age of twenty-one years; or,

Second. Insane; or,

Third. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than his natural life.

The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought, cannot be extended more than five years by any such disability, except infancy, nor can it be so extended, in any case, longer than one year after the disability ceases. (As amended 1869, c. 60, § 1.)

§ 18. Effect of death of party. If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his personal representatives after the expiration of that time, and within one year from his death. If a person against whom an action may be brought, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his representatives, after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.

15 M. 159.

$ 19. Same period between death of party and granting of letters. The time which elapses between the death of a person and the granting of letters testamentary and of administration on his estate, not exceeding six months, and the period of six months after the granting of such letters, are not to be deemed any part of the time limited for the commencement of actions by executors or administrators.

§ 20. Period of war not included, when. When a person is an alien, subject or citizen of a country at war with the United States, the time of the continuance of the war is not a part of the period limited for the commencement of the action.

§ 21. Period covered by injunction, etc., not included. When the commencement of an action is stayed by injunction, or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.

$ 22. Disability available, when. No person can avail himself of a disability, unless it existed at the time his right of action accrued.

§ 23. Two or more co-existing disabilities. When two or more disabilities co-exist at the time the right of action accrues, the limitation does not attach until they are all removed.

$24. Evidence of new promise must be in writing. No acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of this chapter, unless the same is contained in some writing, signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.

9 M. 1(13); 11 M. 87 (138); 12 M. 17, 352, 407: 13 M. 158; 16 M. 215.

$25. Reversal on appeal-new action. If any action is commenced within the time prescribed therefor, and judgment given therein for the plaintiff, and the same is arrested or reversed on error or appeal, the plaintiff may commence a new action within one year after such reversal or arrest.

TITLE 3.

THE PARTIES TO CIVIL ACTIONS.

§ 26. Real party in interest-assignment of causes of action. Every action shall be prosecuted in the name of the real party in interest, except as hereinafter provided: