TITLE II.

nent of action; appearance of parties; provisional remedies.

is commenced before a justice of the peace, either tary appearance and joinder of issue by the parties, rvice of a summons.

§ 11, 12 and 13 (2 Edm. 243).

ntents of summons.

ons must be directed, generally, to any constable of where the justice resides; and it must command him he defendant to appear before the justice, at a place rein, to answer the complaint of the plaintiff in a Where the summons is accompanied with an order defendant, it must be made returnable immediately est of the defendant, within twelve days after the was issued: in every other case, it must be returne therein specified, not less than six nor more than after the day when it was issued.

vice of summons.

ervice of the summons must be made by delivering of to the defendant; except where it is specially preis chapter that personal service may be made by copy to another person. Where service of a sumonal, it must be made at least six days before the arance specified therein; except where it is acith an order of arrest.

upon a corporation.

defendant to be served is a corporation, the sume personally served upon it, by delivering a copy officer or person, to whom a copy of the summons brought against the corporation in the supreme

court, might be delivered, as prescribed in sections 431 and 432 of this act; or, to any director or trustee of the corporation, by whatever official title he is called.

Co. Proc., § 64, L. 1847, ch. 470, § 45 (4 Edm. 587).

§ 2880. Id.; special provisions relating to railroad cor porations.

Where the defendant to be served is a domestic railroad ca poration, and no officer thereof resides in the county, to whom a copy of the summons may be delivered, as prescribed in the last section, it may be personally served, by delivering a cop thereof to a local superintendent of repairs, freight agent, age to sell tickets, or station keeper of the corporation, residing the county; unless, at least thirty days before it was issued, corporation had filed, in the office of the clerk of the county, written instrument, designating a person residing in the cou upon whom process to be issued by a justice of the peace again it, may be served; in which case, the summons may be personal served by delivering a copy to the person so designated. L. 1854, ch. 282, §§ 14, 15 (3 Edm. 645).

§ 2881. [Am'd, 1895.] Id.; relating to express companie Where the defendant to be served is a corporation, associati partnership or person, doing business in the State as an expre company or an insurance company, and no person resides in county to whom a copy of the summons may be delivered. prescribed in the foregoing sections of this article, it may personally served on the express company by delivering a thereof to any local or general agent, to receive freight or cels, route agent, or messenger of the defendant, residing in county, and on any insurance company by delivering a c thereof to any local or general agent of the defendant, residi in the county; unless, at least thirty days before it was issu the defendant had filed, in the office of the clerk of the county written instrument, designating a person residing in the cous upon whom process to be issued by a justice of the peace agai the defendant, may be served; in which case, the summons be personally served by delivering a copy thereof to the pers so designated.

L. 1895, ch. 349.

§ 2882. Last two sections qualified.

Where a person has been designated, as prescribed in eit of the last two sections, and the designation has been revoked it appears, by affidavit or the return of the constable, to w a summons has been duly delivered for service, that the pers designated is dead, or has ceased to reside within the county. that he cannot, after due diligence, be found within the court so as to deliver a copy of the summons to him; the original su mons, or the second or third summons, issued as prescribed in next section, may be served as if the designation had not het made. Such a designation may be revoked by a writing, exec and filed in like manner as required for the purpose of mas the designation.

§ 2883. Second and third summons; effect thereof. Where it appears, by the return of the constable, to whe summons has been duly delivered for service, that it was

any cause, a second summons may be issued by the ce, in the same action, within twenty days after the ons was issued; and, upon the like return thereof, a nons may be issued, within twenty days after the secsued. The second or the third summons, as the case plates back to the time when the first summons was 1 with respect to all proceedings before actual service, thereof has the same effect, as if the first summons seasonably served. For the purpose of issuing a new as prescribed in this section, a previous summons may d upon the sixth, or any subsequent day, before the thereof.

Where name of defendant is unknown.

he plaintiff is ignorant of the name, or part of the defendant, that defendant may be designated in the nd in any other process or proceeding in the action, by name, or by so much of his name as is known, adding on, identifying the person intended. The person so must thereupon be regarded as a defendant in the as sufficiently described therein for all purposes. name, or the remainder of his name, becomes known, before whom the action is pending, must amend the already taken, by the insertion of the true or full ace of the fictitious name, or part of a name; and all proceedings must be taken under the name so in

§ 282 (2 Edm. 282).

eturn of summons.

le, who serves a summons, must, at or before the time me is returnable, make and deliver to the justice a rn thereof, under his hand, stating the time when, and in which, he served it. A constable who fails seasone a summons, delivered to him for service, must make eturn thereof under his hand, stating that it was not the reason why he failed to serve it.

§ 16 (2 Edm. 244).

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ARTICLE SECOND.

Appearance of parties.

Sec. 2886. Parties may appear in person or by attorney. 2887. Guardian ad litem for infant plaintiff.

2888. Id.; for infant defendant.

2889. When constable, etc., may not act as attorney.

2890. Authority of attorney; how proved.

2891. Plaintiff to prove his case.

2892. Defendant may offer to compromise; proceedings thereupon.

2893. Justice to wait one hour.

§ 2886. Parties may appear in person or by attorney. A party to an action before a justice of the peace, who is of ful age, may appear and prosecute or defend the same, in person of by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs.

2 R. S. 232, §§ 39 and 41 (2 Edm. 248).

§ 2887. Guardian ad litem for infant plaintiff. Before a summons is issued in behalf of, or an issue is joine? without summons by, an infant plaintiff, the justice must ap point a competent and responsible person, nominated by the plai tiff or his general guardian, to appear as his guardian for the p pose of the action. The written consent of the person so sp pointed must be filed with the justice, before his appointment The guardian so appointed is responsible for the costs.

Id., § 40 (2 Edm. 248).

§ 2888. Id.; for infant defendant.

After the service and return of a summons against an infart defendant, no other proceeding shall be taken in the action until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summons, or he neglects or refuses to nominate, the justice may, on the app cation of the plaintiff, appoint any proper person as his guardia The written consent of the person, so appointed, must be file! with the justice before his appointment. The guardian so ap pointed is not responsible for any costs.

Id., §§ 42 and 43.

§ 2889. When constable, etc., may not act as attorney. Subject to the provisions of sections 63 and 64 of this act, a person other than the constable who served the summons or the venire, or the law partner or clerk of the justice, may be the at torney for a party to an action before a justice of the peace. Id., § 44; L. 1864, ch. 421 (6 Edm. 295).

§ 2890. Authority of attorney; how proved.

The attorney's authority may be conferred orally or in writing but the justice shall not suffer a person to appear as an attorney; unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself, or another.

Id., § 45.

ndant fails to appear and answer, the plaintiff cannot thout proving his case.

§ 64, subd. 8.

Defendant may offer to compromise; proceedings

a.

n an action to recover a chattel, the defendant may, eturn of the summons and before answering, file with a written offer to allow judgment to be taken against sum therein specified, with costs. If there are two or dants, and the action can be severed, a like offer may y one or more of the defendants against whom a sepment may be taken. If the plaintiff thereupon, before I other proceeding in the action, files with the justice acceptance of the offer, the justice must render Judgdingly. If an acceptance is not filed, the offer cannot evidence upon the trial; but, if the plaintiff fails to obe favorable judgment, he cannot recover costs from the e offer, and must pay the defendant's costs from that

subd. 15.

ustice to wait one hour.

e return of a summons duly served, the justice must our, after the time specified therein for its return, unrties sooner appear.

§ 46 (2 Edm. 249), am'd.

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