by the sheriff of said county, or one of his deputies, except in case of the absence or inability of said sheriff or his deputies, and in cases where the said sheriff shall be a party to such action; and in such excepted cases, either of the judges of the district court of said county may, by an endorsement upon such writ, authorize such service to be made by some disinterested person by him designated to serve the same, (Sp. Laws 1877, c. 185, § 2.)

$ 59. (SEC. 48.) Summons, how served and on whom. The summons shall be served by delivering a copy thereof, as follows:

First. If the action is against a corporation, to the president, or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof: provided, that in case none of the officers named can be found within the state, of which the return of the sheriff that they cannot be found within his county shall be prima facie evidence, then the summons may be served by publication; but such service can be made in respect to a foreign corporation only when it has property within this state, or the cause of action arose therein;

10 M. 308 (386); 13 M. 278,

Second. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there is none within this state, then to any person having the care or control of such minor, or with whom he resides, or by whom he is employed;

Third. If against a person for whom a guardian has been appointed for any cause, to such guardian, and to the defendant personally;

Fourth. In all other cases to the defendant personally, or by leaving a copy of the summons at the house of his usual abode, with some person of suitable age and discretion then resident therein. (As amended 1878, c. 14, § 1.)

§ 60. Service on foreign corporations. That the summons in any civil action or proceeding wherein a foreign corporation is defendant may be served by delivering a copy thereof to the president, secretary, or any managing or general agent of said foreign corporation; and such service shall be of the same force, effect and validity as like service upon domestic corporations. (Gen. St. p. 494, § 1.)

9 M. 225 (239); 10 M. 308 (386); 13 M. 278.

§ 61. Act to supersede other inconsistent provisions. This act shall have full force and effect, notwithstanding any provisions of the General Statutes, or other law of the state inconsistent herewith, and shall be published with and as a part of the General Statutes. (Id. § 2.)

13 M. 278.

*8 62. Service on railroad companies. The service of all process and papers in any civil action or proceeding, before any justice of the peace, or in the district court, against any railroad company within this state, may be made upon any acting ticket or freight agent of such company, within the county in which the action or proceeding shall be commenced, and shall be taken and held in all cases to be a legal service: provided, that whenever any railroad company has appeared in an action by an attorney, thereafter such service shall be made upon the attorney of record. (1871, c. 64, § 1.)

*§ 63. Service on domestic corporation without resident officers. Whenever any corporation, created by the laws of this state or late territory of Minnesota, does not have an officer in this state upon whom legal service of process can be made, an action or proceeding against such corporation may be commenced in any county where the cause of action may arise, or said corporation may have property; and service may be made upon such corporation by depositing a copy of the sunmons, writ, or other process, in the office of the secretary of state, which shall be taken, deemed and treated as personal service on such corporation: provided, a copy of said summons, writ, or other process shall be deposited in the postoffice, postage paid, directed to the secretary or other proper officer of such corporation, at the place where the main business of such corporation is transacted, when such place of business is known to the plaintiff, and be published

at least once a week for six weeks in some newspaper printed and published in the city of St. Paul, before such service shall be deemed perfect. (1875, c. 43, § 1.)

64. (SEC. 49.) Service by publication-in what cases allowed. When the defendant cannot be found within the state-of which the return of the sheriff of the county in which the action is brought, that the defendant cannot be found in the county, is prima facie evidence and upon the filing of an affidavit of the plaintiff, his agent or attorney, with the clerk of the court, stating that he believes that the defendant is not a resident of the state, or cannot be found therein, and that he has deposited a copy of the summons in the post-office, directed to the defendant at his place of residence-unless it is stated in the affidavit that such residence is not known to the affiant-and stating the existence of one of the cases hereinafter specified, the service may be made by publication of the summons by the plaintiff or his attorney in either of the following cases:

5 M. 296 (367); 10 M. 293 (366); 23 M. 539.

First-When the defendant is a foreign corporation, and has property within this state.

9 M. 225 (239); 10 M. 308 (386).

Second-When the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent.

Third-When the defendant is not a resident of the state, but has property therein, and the action arises on contract, and the court has jurisdiction of the subject of the action.

Fourth-When the action is for divorce, in the cases prescribed by law.

Fifth-When the subject of the action is real or personal property in this state, and the defendant has or claims a lien or interest actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein.

Sixth-When the action is to foreclose a mortgage, or to enforce a lien of any kind, on real estate in the county where the action is brought. (As amended 1869, c. 73. § 1, and 1878, c. 9, § 1.)

§ 65. (SEC. 50.) Publication, how made. The publication shall be made in a newspaper printed and published in the county where the action is brought, (and if there is no such newspaper in the county, then in a newspaper printed and published in an adjoining county, and if there is no such newspaper in an adjoining county, then in a newspaper printed and published at the capital of the state,) once in each week for six consecutive weeks; and the service of the summons shall be deemed complete at the expiration of the time prescribed for publication as aforesaid. (As amended 1867, c. 68, § 1.)

§ 66. (SEC. 51.) When defendant may appear and defend-restitution. If the summons is not personally served on the defendant, in the cases provided in the last two sections, he or his representatives, on application and sufficient cause shown, at any time before judgment, shall be allowed to defend the action; and, except in an action for divorce, the defendant or his representatives may in like manner be allowed to defend after judgment, and within one year after the rendition of such judgment, on such terms as may be just; and if the defence is successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled as the court directs.

6 M. 315 (458); 15 M. 63.

§ 67. (SEC. 52.) Proceedings when some of the defendants are not served. When the action is against two or more defendants, and the summons is served on one or more, but not all of them, the plaintiff may proceed as follows:

First. If the action is against the defendants jointly indebted upon a contract, he may proceed against the defendants served, unless the court otherwise

directs; and if he recovers 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;

8 M. 58 (106); 22 M. 203.

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

Third. Though all the defendants have been served with the summons, judgment may be taken against any of them severally, when the plaintiff would be entitled to judgment against such defendants if the action had been against them alone.

Bee post, $266.

§ 68. (SEC. 53.) Proof of service of summons, how made. Proof of the service of the summons, and of the complaint or notice, if any, accompanying the same, shall be as follows;

First. If served by the sheriff or other officer, his certificate thereof; or, if by another person, his affidavit; or,

15 M. 288; 18 M. 90.

Second. In case of publication, the affidavit of the printer or his foreman, showing the same, and an affidavit of the deposit of a copy of the summons in the post-office, if the same has been deposited; or,

Third. The written admission of the defendant.

4 M. 108 (163); 4 M. 366 (473.)

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

§ 69. (SEC. 54.) When jurisdiction of court attaches-voluntary appearance. From the time of the service of the summons in a civil action, 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 a personal service of the summons upon him.

10 M. 144 (178); 11 M. 184 (271); 14 M. 16; 23 M. 268, 539.

$ 70. (SEC. 55.) Natural person subject to jurisdiction of court, when. No natural person is subject to the jurisdiction of a court of this state, unless he appears in the court, or is found within the state, or is served with process therein, or is a resident thereof, or has property therein upon which the plaintiff has acquired a lien by attachment or garnishment, and then only to the extent of such property, except in cases where it is otherwise expressly provided by statute.

§ 71. (SEC. 56.) Corporation subject to jurisdiction of court, when. No corporation is subject to the jurisdiction of a court of this state, unless it appears in the court, or has been created by or under the laws of this state, or has an agency established therein for the transaction of some portion of its business, or has property therein upon which the plaintiff has acquired a lien by attachment or garnishment, and, in the last case, only to the extent of such property at the time the jurisdiction attached.

9 M. 225 (239); 10 M. 144 (178); 13 M. 278.

§ 72. (SEC. 57.) Appearance and its effect. A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance; after appearance, a defendant is entitled to notice of all subsequent proceedings; but when a defendant has not appeared, service of notices or papers, in the ordinary proceedings in an action. need not be made upon him.

10 M. 144 (178); 11 M. 184 (271); 12 M. 60, 529; 13 M. 66; 14 M. 170; 16 M. 38; 22 M. 1; 23 M. 268. §73. (SEC. 58.) Notice, on whom to be served. Notices shall be in writing; and notices and other papers may be served on the party or attorney in the manner prescribed in the next three sections, where not otherwise provided by statute. $74. (SEC. 59.) Service of notices, how made. The service may be personal or by delivery to the party or attorney on whom the service is required to be made, or it may be as follows:

First.-If upon an attorney, it may be made during his absence from his

office, by leaving the papers with his clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office; or if it is not open so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and

discretion.

Second.-If upon a party, it may be made by leaving the papers at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion.

2 M. 273 (319).

§ 75. (SEC. 60.) Service by mail allowed, when. Service by mail may be made, when the person making the service, and the person on whom it is to be made, reside in different places, between which there is a regular communication by mail.

§ 76. (SEC. 61.) Manner of service by mail. In case of service by mail, the paper shall be deposited in the post-office, addressed to the person on whom it is served, at his place of residence, and the postage paid; and in such case, the time of service shall be double that required in case of personal service.

§ 77. (SEC. 62.) Service on party, when and how-on attorney-on clerk for party. Where a plaintiff or defendant who has appeared resides out of the state, and has no attorney in the action, the service may be made by mail, if his residence is known; if not known, on the clerk for him. But where a party, whether resident or non-resident, has an attorney in the action, the service of papers shall be upon the attorney instead of the party. But if the attorney shall have removed from the state, such service may be made upon him personally, either within or without the state, or by mail to him at his place of residence, if known, and if not known, then by mail upon the party, if his residence is known, whether within or without the state. And if the residence of neither the party or attorney are known, the service may be made on the clerk for the attorney. (As amended 1872. c. 72. § 1.)

§ 78. (SEC.. 63.) Limitation of four preceding sections. The provisions of the four preceding sections do not apply to the service of a summons or other process, or of any paper to bring a party into contempt.

§ 79. (SEC. 64.) Notices not insufficient when-amendment-extension of time. A notice or other paper is valid and effectual, though the title of the action in which it is made is omitted, or it is defective either in respect to the court or parties, if it intelligently refers to such action or proceeding; and in furtherance of justice, upon proper terms, any other defect or error in any notice or other paper or proceeding may be amended by the court, and any mischance, omission or defect relieved, within one year thereafter; and the court may enlarge or extend the time, for good cause shown, within which by statute any act is to be done, proceeding had or taken, notice or paper filed or served; or may, on such terms as are just, permit the same to be done or supplied after the time therefor has expired, except that the time for bringing a writ of error or appeal shall in no case be enlarged, or a party be permitted to bring such writ of error or appeal after the time therefor has expired.

$80. (SEC. 65.) Filing of pleadings, bonds, affidavits, etc. The pleadings and various bonds required to be given by statute, and the affidavits and other written proceedings in an action, shall be filed or entered in court, or with the clerk thereof, unless the court expressly provide for a different disposition thereof; except that the bonds provided for by this chapter, on the claim and delivery of personal property, shall, after the justification of the sureties, be delivered by the sheriff to the parties respectively for whose benefit they are taken. Each party shall, on or before the second day of the term for which any cause is noticed, file his pleadings in the office of the clerk of the court. (As amended 1867, c. 62, § 3.)

§ 81. (SEC. 67.) Defendant, without answering, may demand assessment of damages. A

defendant who has appeared, may, without answering, demand in writing an assessment of damages, or of the amount which the plaintiff is entitled to recover; and thereupon such assessment shall be had, or any such amount ascertained, in such manner as the court on application may direct, and judgment entered by the clerk for the amount so assessed or ascertained.

$82. (SEC. 68.) Time, how computed. The time within which an act is to be done shall be computed by excluding the first day and including the last. If the last day is Sunday, it shall be excluded.

16 M. 230.

§ 83. (SEC. 69.) Publication of legal notices, made how. The publication of legal notices required by law, or by an order of a judge or court, to be published in a newspaper once in each week for a specified number of weeks, shall be made on the day of each week in which such newspaper is published.

6 M. 123 (192); 21 M. 142.

MOTIONS AND ORDERS.*

*S 84. Order defined. Every direction of a court or judge, made and not included in a judgment, is denominated an order.

or entered in writing, (1867, c. 67, § 1.)

*§ 5. Motion defined. An application for an order is a motion. (Id. § 2.) * 86. Notice of motion-order to show cause. When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the judge may, by an order to show cause, prescribe a shorter time. (Id. § 3.)

*§ 87. Where motions should be made. Motions must be made in the district in which the action is pending, or in an adjoining district: provided, that no motion shall be made in an adjoining district which shall require the hearing of such a motion at a greater distance from the county seat where the action is pend-. ing in which such motion is made than the residence of the judge of the district wherein such action is pending from such county seat. Orders made out of court, and without notice, may be made by any judge of a district court at any place in the state; but no order to stay proceedings for a longer time than twenty days shall be made, except upon notice to the adverse party. Motions for judgment upon demurrer, or upon the pleadings, may be made and determined in vacation; and when any motion is made in a district court other than that in which the action is pending, the order, determination or judgment thereon is to be entered in the same manner, and have the same force and effect, as when made in and by the judge of the district, and in the county in which the action is pending. (Id. § 4.)

TITLE 6.

PLEADINGS IN CIVIL ACTIONS.

888. (SEC. 70.) Pleadings, etc., regulated by statute. The forms of proceedings in civil actions, and the rules by which the sufficiency of pleadings is to be determined, shall be regulated by statute.

§ 89. (SEC. 71.) What pleadings allowed. The only pleadings on the part of the plaintiff are:

• An act in relation to motions and orders. Approved March 7, 1867. (Laws 1867, C. 07.)