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incurred under such statute, unless the repealing Act shall so expressly provide ; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
The laws of Indiana took effect at the dates following, except where emergency clauses otherwise provided : R. S. 1843
November 6, 1852
May 6, 1853
July 24, 1853 1855
August 17, 1855 1857
August 24, 1857 1858 S
August 6, 1859 1859
August 6, 1859 1861
July 5, 1861 1861 S
September 7, 1861 1863
October 10, 1863 1865
September 2, 1865 1865 S
April 13, 1866 1867
6, 1867 1869 R. and s
August 16, 1869 1871.
July 10, 1871 1872 S
7, 1873 1873.
July 7, 1873 1875 R. and S.
24, 1875 1877 R. and S.
July 2, 1877 1879 R. and S.
31, 1879 R. S. 1881 R. and S.
September 19, 1881 1883
5, 1883 1885 R. and S.
18, 1885 1887
21, 1887 1889
10, 1889 1891
June 3, 1891 1893
18, 1893 1895
1, 1895 1897
15, 1897 1899
28, 1899 1901
May 15, 1901
1. The form of action 2. Parties to action 3. Foinder of causes of action. 4 Causes of action that survive 5. Special causes of action. 6. Actions, when commenced. 7. Actions, where commenced. 8. Actions, how commenced. 9. Actions, when dismissed. 10. Pleadings. 11. Formation and order of issues, 12, Issues. 13. Continuances. 14. Change of venue, 15. Depositions. 16. Written evidence. 17. Witnesses. 18. Offer before trial. 19. Trial by jury.
Trial by Court.
Trial by agreed case. 22, Trial by Referee. 23. New trial. 24. Judgment. 25. Appeal.
ARTICLE I- THE FORM OF ACTION.
SEC. 249. One form of action.
250. Plaintiff and defendant, (1881 S., p. 240. In force September 19, 1881.] 249. One form of action. 1. There shall be no distinction in pleading and practice between actions at law and suits in equity; and there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. (1.)
1. The Code has not changed the rules of law as to rights of parties.- Scott 0. Crawford, 12 Ind. 410 ; Woodford o. Leavenworth, 14 id. 311; Matlock o. Todd, 25 Id. 128.
250. Plaintiff and defendant. 2. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant. (2.)
ARTICLE 2-PARTIES TO ACTION.
SEC. 351. Real party - Exception.
Bond of next friend. 252. Executors, trustees, etc. How may sue. 258. Guardian ad litem. 253 Action upon official bonds.
259 Guardian not liable for costs - Exception. 954 Married women.
260. Poor person, Attorney for.
261. Order, when appulled. 256. Next friend - Written consent - Costs - Re- 262. Who platntiffs. moval.
263. Unmarried woman - Seduction -Damages
SIC. 264. Parent or guardian - Seduction.
272. Making new parties. 265. When wife or mother may sue.
273. Interpleader Notice. 366. Father or guardian, for injury to child, 274. New party - Notice. 367. Joinder of plaintiffs barred -Striking from 275. New party in action for purchase-money record.
Decree. 268, Who defendants.
276. Assignor when defendant - Rule as to set. 269. Joint interest – When one may sue for all.
off, etc. 370. Persons liable on same instrument.
277. New party, how brought in by defendant, 271.
When no abatement- - Proceedings-Trans.
(1881 S., p. 240. In force September 19, 1881.] 251. Real party-Exception. 3. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. (3.)
1. As to who is real party in interest, see Lawrence v. Long, 18 Ind. 301; Men. denhall v. Baylies, 47 id. 575; Claflin o. Dawson, 58 id. 408; Smock v. Brush, 62 id. 176.
252. Executors, trustees, etc. -How may sue. 4. An executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person 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. It shall not be necessary to make an idiot or lunatic a joint party with his guardian or committee, except as may be required by statute. (4.)
1. When a note was made payable to certain persons for a specified purpose, Held, That such persons were trustees of an express trust.-Weaver o. Trustees, 28 Ind. 112 ; Dix o. Akers, 30 id. 431 ; Musselman v. Cravens, 47 id. 1; Wolcott v. Stand. ley, 62 id. 198.
2. A note was made payable to A. for B. Held, That A. was trustee of an express trust, and might sue thereon in his own name.—Heavenridge v. Mondy, 34 Ind. 28.
3. A person holding lands as trustee, the trust not appearing, is liable for the taxes during the time he holds the legal title thereto.-Foresman v. Chase, 68 Ind. 500.
4. In a suit by a trustee, the defendant may set off a debt due to him from the cestui que trust. —Waddle o. Harbeck, 33 Ind. 231.
253. Action upon official bonds. 10. Actions upon official bonds, and bonds payable to the State, shall be brought in the name of the State of Indiana, upon the relation of the party interested. (7.)
1. A suit upon the bond of a Commissioner to sell real estate in partition, is properly brought in the name of the State, on the relation of the parties interested.-Owen o. State, 25 Ind. 107.
2. So, with a suit on the bond of an assignee, in trust for creditors, --- Jackson o. Rounds, 59 Ind. 116.
254. Married women. 11. A married woman may sue aloneFirst. When the action concerns her separate property.
Second. When the action is between herself and her husband; but in no case shall she be required to sue or defend by guardian or next friend, except she be under the age of twenty-one years. (8.) 255. Infants.
12. When an infant shall have a right of action, such infant shall be entitled to bring suit thereon, and the same shall not be delayed or deferred on account of such infant not being of full age. (10.)
256. Next friend — Written consent-Costs - Removal. 13. Before any process shall be issued in the name of an infant who is a sole plaintiff, a competent and responsible person shall consent in writing to appear as the next friend of such infant; and such next friend shall be responsible for the costs of such action; and thereupon process shall issue as in other cases. But where it shall appear to the Court that such next friend is incompetent, or irresponsible, the Court may remove him, and permit some suitable person to be substituted, without prejudice to the progress of the action. (11.)
1. An infant can not appoint an agent or appear by attorney. He appears by next friend: but the latter is not a party to the suit; the infant is. If he attain majority during the pendency of the suit, the fact should be noted, and the suit stand afterward in his own name.-Holmes v. Adkins, 2 Ind. 398.
2. When the defendant pleads that the plaintiff is an infant, the Court may allow a responsible person to appear as next friend, and file the proper undertaking over defendant's objection.--Greenman e. Cohee, 61 Ind. 201.
3. It is only when an infant is a sole plaintiff that a next friend is necessary. Resor o. Resor, 9 Ind. 347.
4. The law presumes that all parties are adults until the contrary appears.-Rowe 0. Arnold, 39 Ind. 24.
257. Bond of next friend. 14. The Court, in its discretion, may require the next friend of an infant, in an action for the recovery of any debt or damages, to execute a written undertaking to such infant, with sufficient sureties, to be approved by the Court, that the next friend shall duly account to the infant for all moneys which may be recovered in such action. (12.)
258. Guardian ad litem. 15. An infant-defendant shall appear and defend by guardian appointed by the Court or chosen by such infant with the consent of the Court. (13.)
1. A guardian ad litem may be appointed for an infant-defendant, although he have a regular guardian appointed by the same Court, living in the same jurisdiction.“ Alexander v. Frary, 9 Ind. 481.
2. Such guardian has no authority to waive process or service.-Pugh o. Pugh, 9. 3. Nor to confess the facts stated in the complaint-Martin 0. Starr, 7 Ind. 224. 4. Process must be served upon infant-defendants in the same manner as upon adults.--Id.
5. The objection that no guardian ad litem for an infant-defendant in bastardy had been appointed can not be made primarily in the Supreme Court.-DePriest o. State, 68 Ind. 569.
259. Guardian not liable for costs-Exception. 16. No person appointed as guardian shall be liable for the costs of the action, unless charged by the special order of the Court for some personal misconduct in the same. (14.)
260. Poor person, Attorney for. 17. Any poor person, not having sufficient means to prosecute or defend an action, may apply to the Court in which the action is intended to be brought, or is pending, for leave to prosecute or defend as a poor person. The Court, if satisfied that such person has not sufficient means to prosecute or defend the action, shall admit the applicant to prosecute or defend as a poor person, and shall assign him an attorney to defend or prosecute the cause, and all other officers requisite for the prosecution or defense, who shall do their duty therein without taking any fee or reward therefor from such poor person. (15.)
261. Order, when annulled. 18. If the person so admitted be guilty of any improper conduct, or of any unjustifiable delay in the progress of such action, the Court may, in its discretion, annul such order,
and he shall thereafter be deprived of all benefit of the order admitting him to prosecute or defend as such poor person. (16.).
262. Who plaintiffs. 19. All persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs, except as otherwise provided in this Act. (17.)
263. Unmarried woman - Seduction - Damages. 26. Any unmarried female may prosecute, as plaintiff, an action for her own seduction, and may recover therein such damages as may be assessed in her favor. (24.)
1. A complaint by a woman for her own seduction is insufficient, unless it allege that she is unmarried.-Thompson v. Young, 51 Ind. 599.
2. Infancy of a defendant is no bar to such action.-Lee v. Hefley, 21 Ind. 98.
3. The general character of the party seduced is in issue, and may be supported or impeached.--Shattuck o. Myers, 13 Ind. 46.
4. Marriage of the plaintiff to a person not the seducer is no bar to the action.Dowling o. Crapo, 65 Ind. 209.
5. An action for seduction survives.-Gimbel v. Smidth, 7 Ind. 627. 264. Parent or guardian - Seduction. 27. A father (or, in case of his death, or desertion of his family, or imprisonment, the mother) may prosecute, as plaintiff, for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward be not living with, or in the service of, the plaintiff
, at the time of the seduction or afterward, and there be no loss of service. When the action is brought by the guardian, the damages recovered shall inure to the ward. (25.)
265. When wife or mother may sue. 28. When a husband or father has deserted his family, or is imprisoned, the wife or mother may prosecute or defend, in his name, any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had. (26.)
266. Father or guardian may sue for injury to child. 29. A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injúry or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward. (27.)
267. Joinder of plaintiffs barred — Striking from record. 53. In cases where part only of the persons entitled to bring an action are barred by the Statute of Limitations, all may be joined as plaintiffs; and when it shall appear to the satisfaction of the Court, by admission or otherwise, that part of the plaintiffs are barred by the statute, the Court, upon motion, shall order the names of such plaintiffs to be stricken from the record, and the action may be prosecuted by those not barred. (226.)
268. Who defendants. 20. 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 the questions involved. (18.)
1. Junior mortgagees are proper, but not necessary, parties in foreclosure.--Mack 0. Grover, 12 Ind. 254.
2. The vendee of real estate, who buys pending a suit to foreclose a lien, is not a necessary party, and is bound by the decree.-Kern v. Hazlerigg, 11 Ind. 443.
3. Those liable for tort may be sued either jointly or severally; but this does not