Aquivalent to service.

Summons

must return the same at or before the time therein stated. SEC. 71. An acknowledgment on the back of the summons, or the voluntary appearance of a defendant, is equivalent to service.

SEC. 72. A summons against a corporation may be against corpora- served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or agent; or if none of the aforesaid officers can be found, by a copy left at the office or last usual place of business of such corporation.

Insurance Com

pany.

Foreign corporation.

Minor.

Publication

when.

SEC. 73. When the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency.

SEC. 74. When the defendant is a foreign corporation having an agent in this territory, the service may be made upon such agent.

SEC. 75. When the defendant is a minor under the age of fourteen years, the service must be upon him, and upon bis guardian or father; or, if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone shall be sufficient. The manner of service may be the same as in the case of adults.

Constructive Service.

SEC. 76. Service may be made by publication in either of the following cases:

First, In actions brought under the fiftieth, fifty-first and fifty-second sections of this code, when any or all of the defendants reside out of the territory.

Second, In actions brought to establish or set aside a will, where any or all of the defendants reside out of the territory.

Third, In actions brought against a non-resident of this territory, or a foreign corporation having in this territory,

property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in auy way.

Fourth, In actions which relate to, or the subject of which is, real or personal property in this territory, where any defendant has or claims a lien or interest actual or contingent therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, and such defendant is a non-resident of the territory, or a foreign corporation.

Fifth, In all actions where the defendant, being a resident of the territory, has departed therefrom, or from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself coucealed therein with the like intent.

SEC. 77. Before service can be made by publication, an affidavit must be filed, that service of a summons cannot be made within this territory, on the defendant or defendants, to be served by publication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication. SEC 78. The publication must be made six consecutive Publications, weeks, in some newspaper printed in the county where the what contain. petition is filed, if there be any printed in such county; and if there be not, in some newspaper printed in this territory of general circulation in that county. It must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to

answer.

how long and

SEC. 79. Service by publication shall be deemed com- when complete. plete when it shall have been made in the manner and for the time prescribed in the preceding section; and such service shall be proved by the affidavit of the printer or his foreman or principal clerk, or other person knowing the

game.

SEC. 80. In all cases where service may be made by Preet of publication, and in all other cases where the defendants are

Jndzment opened.

Heirs or de TİBOOM.

non-residents, and the cause of action arose in the territory, suit may be brought in the county where the cause of action arose, and personal service of the summons may be made out of the territory by the sheriff or some person appointed by him for that purpose. In all cases where service of a summons is made on a person without the territory, proof of such service must be made by affidavit, stating the time and manner of service, and such service shall be made in the same manner as summonses are served on parties residing within this territory.

SEC. 81. A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense, but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be effected by any proceedings under this section, nor shall they effect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment, or order, as provided by this section, shall be allowed to present counter affidavits, to show that during the pendency of the action, the applicant had notice thereof in time to appear in court and make his defense.

SEC. 82. In actions where it shall be necessary to make the heirs or devisees of any deceased person defendants, and it shall appear, by the affidavit of the plaintiff annexed to his petition, that the names of such heirs or devisees, or any of them, and their residence, are unknown to the plaintiff, proceedings may be had against such unknown heirs or

devisees, without naming them, and the court shall make such order respecting service as may be deemed proper, if service by publication be ordered, the publication shall not be less than six weeks.

SEC. 83. When the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows:

First, If the action be against defendants jointly indebted upon contract, he may proceed against the defendants 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 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.

Two of my defondants.

Second, If the action be against defendants severally liable, he may, without prejudice to his rights against those na not served, proceed against the defendants served in the same manner as if they were the only defendants.

SEC. 84. Nothing in this code shall be so construed as to make a judgment against one or more defendants jointly or severally liable, a bar to another action against those not served.

Jointly liable

Severally

Judgment not

a bar.

Action, when

SEC. 85. When the summons has been served, or publication made, the action is pending, so as to charge third Puding. persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof, as against the plaintiff's title.

SEC. 86. When any part of real property, the subject matter of an action, is situated in any other county or counties than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the register of deed's office of such other county or counties, before it shall operate therein as notice, so as to charge third persons, as provided in the preceding section. It shall operate as such notice without record, in the county where it is rendered; but this section shall not apply to actions or

Certified copy

of judgment.

Osuses joined, whoo.

Not different places of trial.

Formal allegations.

Furms.

proceedings under any statute in force prior to the passage of this act, which does not require such record.

TITLE VI.

Joinder in Actions.

SEC. 87. The plaintiff may unite several causes of action in the same petition, when they are included in either one of the following classes:

First, The same transaction or transactions connected with the same subject of action;

Second, Contracts, express or implied;

Third, Injuries, with or without force, to person and property or either;

Fourth, Injuries to character;

Fifth, Claims to recover real property with or without damages for the withholding thereof, and the rents and profits of the same;

Sixth, Claims to recover the possession of personal property with or without damages for the withholding thereof;

Seventh, Claims against a trustee by virtue of a contract, or by operation of law; Provided, That an action for malicious arrest and prosecution, or either of them, may bo united with an action for either injury to character or to the person.

SEC. 88. The causes of action so united must effect all the parties to the action and not require different places of trial.

TITLE VII.

Of Pleadings in Civil Actions.

SEC. 89. The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court.

SEC. 90. The forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed by this act.

SRC. 91. The only pleadings on the part of the plaintiff