TITLE 1. Form of actions at law abolished. 4 How. 427. Parties, how designated. in Action 5 How. 161. of thing in TITLE I. Of the Form of Actions at Law, and the Parties thereto. SEC. 1. Distinction between forms of civil actions abolished. 2. Parties to actions, how designated. 3. Actions, how commenced. 4. Assignment of thing in action not to prejudice defence. 5. Executor or trustee may sue without the person beneficially interested. 6. When a married woman is a party, her husband to be joined, except, &c. 7. Infant to appear by guardian. 8. Guardian, how appointed. 9. Father may sue for seduction of daughter. 10. When unmarried females may prosecute for their own seduction. 11. Plaintiff may sue in one action the different parties to commercial paper. 12. Action not to abate by death, marriage, or other disability, &c.; proceedings in such case. 13. Court when to decide controversy, or order other parties to be brought in. SECTION 1. Be it enacted by the Legislative Assembly of the Territory of Oregon, That the distinction between the forms of actions at law heretofore existing is abolished; and there shall be in this territory hereafter, but one form of action at law for the enforcement or protection of private rights, except as otherwise expressly provided by statute. SEC. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant. SEC. 3. Every action shall be prosecuted in the name of the real ty in interest party in interest, except as otherwise provided in section five. Assignment SEC. 4. In the case of an assignment of a thing in action, the action not to action by the assignee shall be without prejudice to any set-off or other defence existing at the time of, or before notice of the assignCow. 10 ment; but this section shall not apply to a negotiable promissory note or bill of exchange transferred in good faith, and upon good consideration, before due. prejudice a defence, 9 Paige, 369; 1 Sanf. 23. Executor, etc., or trus 4 Hill, 136. SEC. 5. An executor or administrator, a trustee of an express tee may suc. trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person with whom, or in whose name a contract is made for the benefit of another, is a trustee of an express trust within the meaning of this section. Husband, when to be joined. 4 Pr. R. 386; 2 Sanf. 715. 6 Pr. R. 53. Infant to ap pear by guar SEC. 6. When a married woman is a party, her husband shall be joined with her, except that: 1. When the action concerns her separate property, she may sue or be sued alone. 2. When the action is between herself and her husband, she may sue or be sued alone. But when her husband cannot be joined with her, as herein provided, and she is an infant under twenty-one years of age, she shall prosecute or defend by her next friend." SEC. 7. When an infant is a party, he shall appear by guardian, dian, who may be appointed by the court in which the action is brought, 12 Wen. 191; or by a judge thereof. 11 Wen. 164; 8 Hill, 407; 3 Sanf. 385. SEC. 8. The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the in- TITLE 2. fant, if he be of the age of fourteen years; or if under that age, 2 Paige, 874. upon the application of a relation or friend of the infant. 2. When the infant is defendant, upon an application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relation or friend of the infant. Prosecution of daughter or SEC. 9. A father, or in case of his death or desertion of his for the se. family, the mother, may prosecute as plaintiff for the seduction of duction a daughter, and the guardian for the seduction of a ward, though ward. the daughter or ward be not living with, or in the service of the plaintiff at the time of the seduction or afterwards, and there be no loss of service. fe male may her seduc SEC. 10. An unmarried female, over twenty-one years of age, may When prosecute as plaintiff in an action for her own seduction, and recover prosecute for therein such damages as may be assessed in her favor; but the tion. prosecution of an action to judgment by the father, mother, or guardian, as prescribed in the preceding section, shall be a bar to an action by such unmarried female. se verally liable SEC. 11. Persons severally liable upon the same obligation or Persons instrument, including the parties to bills of exchange and promis- on saine bill sory notes, may, all or any of them, be included in the same action, at the option of the plaintiff. of exchange may be joined. 5 How. 5. when not to SEC. 12. No action shall abate by the death, marriage or other Action, disability of a party, or by the transfer of any interest therein, if abate. the cause of action survive or continue. In case of the death, Proceedings marriage, or other disability of a party, the court may, on motion, in allow the action to be continued by or against his representatives or successor in interest. case death. of may decide con SEC. 13. The court may determine any controversy between Court parties before it, when it can be done without prejudice to the rights troversy or of others, or by saving their rights; but when a complete determi- order parties nation of the controversy cannot be had without the presence of 5 How. 99, other parties, the court shall order them to be brought in. TITLE II. Of the Place of Trial; Actions at Law. Sec. 14. Certain actions to be tried where the subject or some part is situated. 15. Other actions, where the cause or some part thereof arose. 16. Other actions according to defendant's residence. 17. When a change of venue may be had; proceedings of applicant, &c. 18. Application for change of venue; applicant not entitled to a second change. 19. When judge to transmit order of change, &c., to clerk. 20. Transcript of record to be sent by clerk of court where cause is pending, to the clerk of court where cause is to be tried. 21. Applicant to pay costs. 22. When order for change of venue may be cancelled. 23. Cause to be docketed, on filing of transcript, &c., in clerk's office. SEC. 14. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is 142. TITLE 2 situated, subject to the power of the court to change the place of Certain actrial, in the cases provided by statute: tions to be subject is situated. tried where 1. 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; Actions where cause arose. 266. 2. For the partition of real property; 3. For the foreclosure of a mortgage of real property; 4. For the recovery of any personal property distrained for any cause. SEC. 15. Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial in the cases provided by statute: 1. For the recovery of a penalty or forfeiture imposed by statute; except that when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offence was committed: 13 Wen. 35, 2. Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office; or against a person who, by his command, or in his aid, shall do any thing touching the duties of such officer. Actions according to'. SEC. 16. In all other cases, the action shall be tried in the county defendant's in which the defendants or either of them reside, or may be found, residence. at the commencement of the action; or if none of the parties reside in this territory, the same may be tried in any county which the plaintiff may designate in his complaint; subject, however, to the power of the court to change the place of trial, as provided by stat of Change, venue. 4 Hill 62, n. Application for change of 1 Denio, 660. ute. SEC. 17. A change of venue, or the place of trial, may be had on the application of either of the parties in the following cases: 1. When the county in which the action is pending shall be a party thereto or interested therein: 2. When the judge shall be directly interested in the action, or connected by blood or affinity with any person so interested, nearer than in the fourth degree; 3. When the party applying for such change shall make and file an affidavit, stating that the judge or the inhabitants of the county are so prejudiced against him that he cannot expect an impartial trial, and also that the application for the change of venue is not made for the purpose of delay. SEC. 18. An application for the change of venue may be made, venue, & either to the court in term time, or to a judge thereof in vacation, and the change shall be to the most convenient county in which there shall be no exception of the character of those above enumerated. But neither party shall be entitled to more than one change of venue, except for causes not in existence when the first change may have been taken. Order change: of SEC. 19. If the change of venue be ordered by the judge in vaAffidavit to cation, he shall immediately transmit to the clerk of the court where be sent to clerk. the cause is pending, the affidavit, if any, and the order for the TITLE 3. change, who shall file the same in his office. SEC. 20. In such cases, as well as where the order shall be made Duty of clerk in open court, the clerk shall forthwith transmit to the clerk of the proper court, a transcript of the record and proceedings in such cause, with all the original papers filed therein, having first made out and filed in his own office authenticated copies of all such original papers. pay costs. SEC. 21. The costs of such change of venue shall be paid by the Applicant to applicant therefor, and not taxed as a part of the costs of the case, and the clerk may require payment of such costs before the transcript and papers shall be transmitted as aforesaid. of venue SEC. 22. If such transcript of the record and proceedings be not when order. transmitted to the clerk of the proper court within twenty days may be anafter the order for the change of venue shall be filed, (unless) nulled. longer time be allowed by the judge,) such order may be annulled. by the court or judge who made the same, and, in such case, no other change of venue shall be allowed to such applicant. of venue when SEC. 23. Upon filing such transcript and papers in the office of Change the clerk of the court to which the same were certified, the cause consummashall be docketed, and the same proceedings had as though it had.ted. originated in that court. TITLE III. Of the Manner of Commencing Actions at Law. SEC. 24. Actions how commenced. 25. Summons when issued. 26. Summons, requisites of. 27. Notice to be inserted in summons in certain actions. 28. Service and return of summons. 29. Summons and complaint how served. 30. Publication when defendant cannot be found. 31 & 32. Publication how made; defendant's rights in such cases. 33. When the clerk may issue a second summons. 34. Proceedings where there are several defendants, and part only are served. 35. Service of summons, &c., how proved. 36. When jurisdiction of action acquired. SEC. 24. Actions at law in the several district courts of this ter- How ritory, shall be commenced by the filing of a complaint with the menced. clerk of the court, and the issuing of a summons thereon. com when issued, SEC. 25. The clerk shall indorse on the complaint, the day, Summons, month and year that the same shall be filed; and at any time there- &c. after, the plaintiff may have a summons issued, which shall be directed to the defendant, and shall be signed by the clerk, and issued under the seal of the court, and shall be made returnable on the first day of the next term of court. its requisites SEC. 26. The summons shall require the defendant to appear and Summons: answer the complaint, or that judgment by default will be taken against him. 1. If he be served within the county in which the action is TITLE 8._ brought, ten days before the term of the court; or if in any other county, thirty days before the court, he shall appear and answer the complaint on the return day of the summons. Notice to be inserted. 4 How. 94. Service and return summons. complaint, 2. If he be served less than ten days, within the county in which the action is brought, or less than thirty days in any other county, he shall appear and answer the complaint on the first day of the term next after the return day of the summons. SEC. 27. There shall also be inserted in the summons a notice, in substance as follows: 1. In an action arising on contract for the recovery of money or damages only, that the plaintiff will take judgment for a sum speci fied 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. SEC. 28. The summons shall be served by the sheriff of the of county where the defendant is found, or by his deputy, or by a person specially appointed by him, or by a person appointed by the judge of the court in which the action is brought. The summons shall be returned to the office of the clerk from which it issued, with the certificate of the sheriff or his deputy, or the affidavit of the person appointed, of its service, and of the service of a copy of the complaint. When served out of the county in which the action is brought, the summons may be returned by mail, and the postage taxed with the costs of suit. Summons & SEC. 29. The summons shall be served by delivering a copy how served. thereof, together with a copy of the complaint prepared by the plaintiff, his agent or attorney, as follows: 5 How. 185. 8 Paige, 1997; 5 Paige, 489; 1. If the action be against a corporation, to the president or other head of the corporation, secretary, cashier, or managing agent thereof; 2. If against any county in this territory, to one of the board of commissioners of such county, or to the clerk of the commissioners; 3. 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 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; 4. If against a person judicially declared to be of unsound mind, 19 Wen. 649 or incapable of conducting his own affairs, and for whom a guar4 Denio, 162. dian has been appointed, to such guardian and to the defendant personally. Publication when de not be found. 5. In all other cases, to the defendant personally, or, if he be not found, to some white person of the family, above the age of fourteen years, at the dwelling-house or usual place of abode of the defendant. SEC. 30. When service of the summons cannot be made as prefendant can- scribed in the last preceding section, and the defendant, after due 3 How. 416; diligence, cannot be found within the territory, and when that fact How. 8. appears by affidavit, to the satisfaction of the court or judge there 4 How. 151; 5 |