LAWS OF THE TERRITORY OF IDAHO. THIRD SESSION. CHAPTER I. AMENDMENTS TO CIVIL PRACTICE ACT. Action, by whom prosecuted; sec. 18, 39. Action, where to be tried; sec. 18, 120, 256, 266. Mortgage, foreclosure of; sec. 18. Complaint, filing of etc.; sec. 23. Summons, by whom signed, etc.; sec. 24. Summons, what to contain; sec. 24. Clerk, duties defined; sec. 23, 24. Defendant, when to answer; sec. 25. Defendant, when served out of county; sec. 25. Real property, filing complaint and answer; sec. 27. Partition of real property; sec. 18. Summons, by whom served, and where; sec. 28. Complaint, copy to be served; sec. 28, Summons, when served by other than officer; sec. 28. Summons, copy to be delivered, etc.; sec. 29. Pleadings, on part of plaintiff; sec. 38. Demurrer, or answer; sec. 38, 67. Complaint, what to contain; sec. 39. Answer, what to contain; sec. 46. Answer, when contains new matter; sec. 50. Pleading to be subscribed; sec. 51. Pleading, verification of; sec. 52, 55. Defense to an action founded on written instrument; sec. 54. Allegation of the complaint; sec. 65. Notice, when given, and by whom; sec. 87. Attachment, when may be made; sec. 120, 121. Contract, action upon; sec. 120. Undertaking, Clerk to require; sec, 122, 137. Personal property, when claimed by third person; sec. 131. Motion, when made, etc.; sec. 139, 140. Juror, having served as; sec. 188. Witness, having been; sec. 188. Referees to report; sec. 190. New trial; sec. 195, 198. Vacated, when verdict may be; sec. 196, 199. Irregularity; sec. 198. Accident or surprise; sec. 198. Newly discovered evidence; sec. 198. Excessive damages; sec. 198. Insufficieney of evidence; sec. 198. Error in law; see. 199. Motion, grounds of noticc, etc.; sec. 198. Personal property, an action to recover; sec. 203. Judgment Roll, what to contain; sec. 206. Execution, when issued, what to contain, etc.; sec. 213. Execution, when issued on judgment against two or more; sec. 214, 248. Exemption, what property is exempt; sec. 222. Levy, if property levied upon be claimed by others; sec. 225. Notice of sale on execution, when given and how; sec. 227. Substitute, when purchaser becomes; sec. 235. Sale, when absolute and when otherwise; sec. 235. Judgment, when specified what kinds of money; séc. 239. Redemption from purchaser; sec. 242. Judgment debtor may be required to appear and answer as to his property; set. 249. Appeal, when has a right to; sec. 286, 297. Statement, if party omit to make; sec. 287. Witness, who may be, etc.; sec. 350, 351. Husband, when a witness against his wife; sec. 353. Witness, when does not understand the English language; sec. 359. Failure to answer summons or subpoena; sec. 375, 378. Debtor, when in another county; sec. 381. AN ACT To amend an Act entitled "An Act to Regulate Proceedings in Civil Cases in the Courts of Justice of the Territory of Idaho," Approved December 4th, 1864. Be it enacted by the Legislative Assembly of the Territory of Idaho, as follows: Sections 4, 18, 23, 24, 25, 27, 28, 29, 38, 39, 40, 46, 50, 51, 52, 54, 55, 65, 67, 87, 120, 121, 122, 131, 136, 137, 138, 139, 140, 181, 182, 186, 188, 189, 190, 191, 192, 195, 196, 198, 199, 203, 206, 213, 214, 222, 225, 227, 235, 239, 242, 248, 249, 256, 266, 286, 287, 297, 350, 351, 353, 359, 375, 378, 498, are hereby amended to read as follows: The following numbered Sections, of which this Act is amendatory, to wit: Sections 244, 245, 246, 247, 377, 379, 380, 381, 726, 727, 728, 729, 730, 731, 732, 733, are hereby repealed, and all Acts and parts of Acts contravening this Act are hereby repealed. SEC. 4. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this Act. SEC. 18. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the Court to change the place of trial, as provided in this Act: First-For the recovery of real property, or of an estate, or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property. Second-For the partition of real property. Third-For the foreclosure of a mortgage of real property:. Provided, That where such real property is situate partly in one county and partly in another, the plaintiff may select either of said counties, and the county so selected shall be the proper county for the trial of any or all of such actions as are mentioned in the first, second and third subdivisions of this section. SEC. 23. The Clerk shall indorse 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 be signed by the Clerk, and directed to the defendant, and be issued under the seal of the Court. SEC. 24. 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 the next 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 indorse on the summons, the names of the plaintiff's attorneys. SEC. 25. The time in which the summons shall require the defendant to answer the complaint, shall be as follows: First—If the defendant is served within the county in which the action is brought, ten days. Second-If the defendant is served out of the county, but in the district in which the action is brought, twenty days. Third-In all other cases, forty days. SEC. 27. 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 afterward, may file with the Recorder 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. 28. 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, except as hereinafter provided. A copy of the complaint, certified by the Clerk, 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, with the affidavit of such person of its service, and of the service of a copy of the complaint. If there be more than one defendant in the action, and such defendants reside within the county, a copy of the complaint need be served on only one of the defendants. SEC. 29. The summons shall be served by delivering a copy thereof, as follows: First-If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier or managing agent thereof. Second-If the suit be against a foreign corporation, or a non-resident joint stock company, or association doing business within the Territory, to an agent, cashier or secretary thereof. Third-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 the 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. Fourth-If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such guardian. Fifth-In all other cases, to the defendant personally. SEC. 38. The only pleadings on the part of the plaintiff shall be the complaint or demurrer to the defendant's answer, and the only pleadings on the part of the defendant shall be the demurrer or the answer. The demurrer or answer of the defendant, and the demurrer of the plaintiff, shall be filed with the Clerk, and a copy thereof served on the adverse party or his attorney: Provided, The adverse party or his attorney live within the county where the action is pending. SEC. 39. The complaint shall contain: First-The title of the action, specifying the name of the Court and the name of the county in which the action is brought, and the name of the parties to the action, plaintiff and defendant. Second-A statement of the facts constituting the cause of action, in ordinary and concise language. Third-A demand of the relief which plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated. SEC. 40. The defendant may demur to the complaint within the time required in the summons to answer, when it appears, upon the face thereof, either: First-That the Court has no jurisdiction of the person of the defendant, or the subject of the action; or, Second-That the plaintiff has no legal capacity to sue; or, Third-That there is another action pending between the same parties, for the same cause; or, Fourth-That there is a defect or misjoinder of parties, plaintiff or defendant; or, Fifth-That several causes of action have been improperly united; or, Sixth-That the complaint does not state facts sufficient to constitute a cause of action; or, Seventh-That the complaint is ambiguous, unintelligible or uncertain. SEC. 46. The answer of the defendant shall contain: First-If the complaint be verified, a specific denial to each allegation of the complaint controverted by the defendant, or a denial thereof, according to his information and belief. If the complaint be not verified, then a general denial to each of |