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STATUTES

OF THE

TERRITORY OF WASHINGTON.

3368

AN ACT TO AMEND AN ACT ENTITLED “AN ACT TO REGULATE THE PRAC

TICE AND PROCEEDINGS IN CIVIL ACTIONS," APPROVED DEC. 2, 1869.

SECTION 1. Be it enacted by the Legislative Assembly of the Territory of Washington, That section two of the act to which this is amendatory, is hereby amended so as to read as follows, viz:

SEC. 2. All common law forms of action are hereby abolished, but the distinction between actions at law and suits in chancery shall be preserved; and pleadings and proceedings in actions at law shall be as prescribed in this act; and pleadings and proceedings in suits in chancery, shall be as prescribed by the laws of the United States and by the rules prescribed by the supreme court of the United States for courts of equity of the United States.

SEC. 2. Sections 59, 60, 61, 62, 63, 64, 66, 67, 68, 69, 70, 71, 172, 173, 193 and 291 of the said act, are hereby amended so as to read as follows, viz:

“SEC. 59. Actions at law in the several district courts of this Territory, 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 appear, answer or demur whether the summons has been issued or not, and such appearance, answer or demurrer shall be deemed a waiver of summons.”

“SEC. 60. 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 run in the name of the United States of America, be signed by the clerk, tested in the name of the judge of the court from which it issues, be directed to the defendant, and be issued under the seal of the court. The summons shall state the parties to the action, the court 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 this 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, briefly stating the sum of money or other relief demanded in the complaint, and the clerk shall also endorse on the ummonos the names of the plaintiff's attorneys. The time in which the summons shall require the defendant to answer the complaint, shall be as follows:

1. If the defendant is served within the county in which the action is brought, twenty days.

2. If the defendant is served out of the county but in the district in which the action is brought, thirty days.

3. In all other cases sixty days.

There shall also be inserted in the summons a notice in substance as follows:

1. In an action arising on contract for the recovery only of money or damages, that the plaintiff will take judgment for a

sum specified therein, if the defendant fail to answer the complaint.

2. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court for the relief demanded therein.

In an action affecting the title to real property, the plaintiff at the time of filing the complaint and the defendant at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may file with the auditor of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties to and the object of the action, and a description of the property in that county affected thereby; and the defendants may also in such notice state the nature and extent of the relief claimed in the answer. From the time of filing only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.”

“SEC. 61. The summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him or appointed by a judge of the court in which the action is brought, or by any citizen of the United States over twenty-one years of age, other than the plaintiff, and who is competent to be a witness on the trial of the action. A copy of this complaint shall be served with the summons. When the summons is served by the sheriff or his deputy, it shall be returned with the certificate or affidavit of the officer, of its service, and of the service of the copy of the complaint, to the office of the clerk from which the summons issued. When the summons is served by any other person, as before provided, it shall be returned to the office of the clerk from which it issued. When the summons is served by any other person, as before provided, it shall be returned to the office of the clerk from which it issued, with the affidavit of such person of its service, and of the service of the copy of the complaint. The plaintiff shall be entitled to as many writs of summons in the same suit as may be necessary to obtain juris

diction of the person of the defendant, and they may be issued at the same or different times.”

"SEC. 62. The summons shall be served by delivering a copy thereof, as follows:

1. If the suit be against a corporation, to the president, or other head of the corporation, secretary, cashier or managing agent thereof.

2. If against any county, to the county auditor..

3. If the suit be against a foreign corporation, or a non-resident joint stock company or association doing business within this Territory, to an agent, cashier or secretary thereof.

4. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, guardian, or if there be none within this Territory, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed. . 5. If against a person for whom a guardian has been appointed for any cause, to such guardian.

6. In all other cases, to the defendant personally.”

“SEC. 63. When the person on whom the service is to be made, has property within this Territory but resides out of the Territory, or has departed from the Territory, or cannot, after due diligence, be found within the Territory, or conceals himself to avoid the service of summons, or the defendant is a foreign corporation and has property within the Territory, or the cause of action against such corporation arose within the Territory, and the fact shall appear by affidavit to the satisfaction of the district court, or a judge thereof, or a judge of the probate court, and it shall, in like manner, appear that a cause of action exists against the defendant in respect to whom the service is made, or that he is a necessary or proper party to the action, such court or judge may grant an order that the service be made by the publication of the summons. In no case shall a summons issue against a non-resident when the person has no property in the jurisdiction of the court, except in an action for divorce, which may be done by publication.”

“Sec. 64. The order shall direct the publication to be made in a newspaper to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week: Provided, That publication against a defendant residing out of the Territory, or absent therefrom shall not be less than six weeks. In case of publication, where the residence or non-residence of an absent defendant is known, the court or judge shall also direct a copy of the summons and complaint to be forth with deposited in the post office, directed to the person to be served, at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the Territory, shall be equivalent to publication and deposit in the post office. In either case the service of the summons shall be deemed complete twenty days after the last day of publication prescribed by the order for publication.”

“ SEC. 66. The writ of subpoena in chancery may also be served by the sheriff or his deputy, as well as by the persons authorized by the rules in equity, and sections 63, 64 and 65 shall apply to suits in equity in so far as said sections do not conflict with the said rules.”

“SEC. 67. When 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:

1. If the action be against the defendants jointly indebted upon a contract, he may proceed against the defendants 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 defendants served.

2. If the action be against the defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants.”

“SEC. 68. Proof of the service of the summons and copy of complaint, shall be as follows:

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