publication, the court or judge must also direct a copy of the summons and complaint to be forthwith deposited in the post-office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the post-office.

The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown, at any time before judgment, must be allowed to defend the action; and except in an action for divorce, the defendant, against whom publication is ordered, or his representatives. may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just; and if the defense be successful, and the judgment, or any part thereof, have been collected or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. And in all cases where publication is made, the complaint must be first filed, and the summons, as published, must state the time and place of such filing.

In actions for the foreclosure of mortgages on real estate, or for the foreclosure of any lien on personal property, already instituted, or hereafter to be instituted, if any party, or parties, having any interest in or lien upon such mortgaged premises or such personal property are unknown to the plaintiff, and the residence of such party or

parties cannot, with reasonable diligence, be ascer tained by him, and such fact shall be made to appear, by affidavit to the court, or to a justice thereof, or to the county judge of the county where the trial is to be had, such court, justice, or county judge may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week, successively, in the state paper, and in a newspaper printed in the county where the premises or such personal property are situated, which publication shall be equivalent to a personal service on such unknown party or parties.

136. Where the action is against two or more defendants, and the summons is served on one or more of them, but not on all of them, the plaintiff may proceed as follows:

1. If the action be against defendants jointly indebted upon 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 defendants served, and if they are subject to arrest, against the persons of the defendants served; or

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

3. If all the defendants have been served, judg ment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants if

the action had been against them or any of them alone.

4. If the name of one or more partners shall, for any cause, have been omitted in any action in which Judgment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may, by action, recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action.

137. In the cases mentioned in section 135, the service of the summons shall be deemed complete, at the expiration of the time prescribed by the order for publication.

138. Proof of the service of the summons, and of the complaint or notice, if any, accompanying the same, must be as follows:

1. If served by the sheriff, his certificate thereof; or,

2. If by any other person, his affidavit thereof; or, 3. 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-office, as required by law, if the same shall have been deposited; or,

4. The written admission of the defendant.

In case of service, otherwise than by publication, the certificate, affidavit or admission must state the time and place of service.

139. From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him."

TITLE VI.

Of the Pleadings in Civil Actions.

CHAPTER I. The complaint.

II. The demurrer.

III. The answer.

IV. The reply.

V. General rules of pleading.

VI. Mistakes in pleading and amendments.

CHAPTER I.

The Complaint.

140. All the forms of pleading heretofore existing, are abolished; and hereafter, the forms of pleading in civil actions, in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act.

2141. The first pleading on the part of the plaintiff is the complaint.

142. The complaint shall contain:

1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial

to be had, and the names of the parties to the action plaintiff and defendant.

2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.

3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

CHAPTER II.

The Demurrer.

143. The only pleading on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the service of the copy of the complaint.

114. The defendant may demur to the complaint, when it shall appear upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or,

3. That there is another action pending between the same parties, for the same cause; or,

4. That there is a defect of parties, plaintiff or defendant; or,

5. That several causes of action have been improperly united; or,

6. That the complaint does not state facts sufficient to constitute a cause of action.

145. The demurrer shall distinctly specify the grounds of objection to the complaint. Unless it do