Entered according to Act of Congress, in the year Eighteen Hundred and Eighty, by In the Office of the Librarian of Congress at Washington. STEREOTYPED AND PRINTED BY THE CHICAGO LEGAL NEWS COMPANY. MAY 25 1920 PART THIRD. CODE OF CIVIL PRACTICE. TITLE XVII. OF PROCEDURE IN COURTS OF ORIGINAL CHAPTER 1. PRELIMINARY PROVISIONS. SECTION 2504. Remedies in civil cases in the courts of this state Remedies are divided into actions and special proceedings. classed. SEC. 2505. A civil action is a proceeding in a court of justice Civil action in which one party, known as the plaintiff, demands against an- denned. other party known as the defendant, the enforcement or protection R. 2006, 2009. of a private right, or the prevention or redress of a private wrong. It may also be brought for a recovery of penalty or forfeiture. Civil actions include everything ex- | thereon, held, that filing the note as cept those cases which come under a claim against the estate, the claim the criminal jurisdiction of the court: being resisted, was sufficient bringing Tomlinson v. Hammond, 8-40. of action to entitle plaintiff to the atWhere a note provided for an attorney's fee: Davidson v. Vore, 62torney's fee, in case action was brought 384. SEC. 2506. Every other remedy in a civil case is a special special proproceeding. Proceedings to disbar an attorney As to method of trying issues in are special proceedings: The State v. Clark, 46-155. special proceedings, see note to § 2737. ceedings. R. 2607. Form of actions. SEC. 2507. All forms of action are abolished in this state; but the proceedings in a civil action may be of two kinds, ordinary R.2608, 2610. or equitable. The legislature has no power to abolish the distinction between law and equity. Such distinction is defined and recognized by the Constitution. (See art. 5, §§ 4 and 6): Claussen v. Lafrenz, 4 Gr. 224. Although forms of proceedings are abolished, yet pleas in abatement, such as to the jurisdiction, or of another action pending, are still proper and legitimate: Rawson v. Guiberson, 6-07. | to assimilate and make uniform the procedure in all law and equity cases. The changes introduced were to be applied equally to both. (Prior cases in which this fact was overlooked, cited and criticised): Shepard v. Ford, 10-502. The term civil action includes proceedings in equity as well as ordinary proceedings: Kramer v. Rebman, 9-114. For somewhat similar provision, By the Code of 1851 it was intended | see § 2644. SEC. 2508. The plaintiff may prosecute his action by equitable Equitable pro- proceedings in all cases where courts of equity, before the adoption of this code, had jurisdiction; and must so proceed in all cases where jurisdiction was exclusive. ceedings. R. 2611. mortgage: ac SEC. 2509. The action on a note, together with a mortgage or Foreclosure of deed of trust, for the foreclosure of the same, shall be by equitable proceedings. An action on the bond or note alone, without regard therein to the mortgage or deed of trust, shall be by ordinary proceedings. tion on note. R. 24179. Mechanic's lien. R. 2 4183. C. '51, 985. Divorce. Sureties: oc The provision that an action to foreclose a mortgage shall be by equitable proceedings, is not in conflict with the Constitution, art. 1, §9, guaranteeing the right of trial by jury. Such right was never recog nized in equity suits: The State v. Orwig, 25-230; Clough v. Seay, 49111. As to effect of bringing separate suits on the note and mortgage, see $ 3320. SEC. 2510. The action for mechanics' lien shall be prosecuted by equitable proceedings, and therewith shail no other cause of action be joined. All persons interested must be made | Held, that an action at law might, Under Rev. § 4183, by which an action for a mechanic's lien was to be prosecuted as an ordinary proceeding. held, that subsequent incumbrancers need not be made parties, and that even though not made parties they could not bring action to redeem, and that in such cases there was no equity of redemption as in case of a mortgage: The State v. Eads, 15-114; assented to by two members of the court in Shields v. Keys, 24-298, 308, the other two members expressing no opinion. SEC. 2511. An action for a divorce shall be prosecuted by equitable proceedings, and no cause of action, save for alimony, shall be joined therewith. An action for divorce being equita- | to a trial de noro in the supreme court: ble, the right to a trial by jury does Sherwood v. Sherwood, 44-192. not exist, and the parties are entitled SEC. 2512. Actions by sureties, and by occupying claimants, cupying claim and on a lost note or bond, may be by ordinary proceedings. ants. ceedings. SEC. 2513. In all other cases, except in this code otherwise Ordinary proprovided, the plaintiff must prosecute his action by ordinary pro- 12. ceedings. Action for writ of habeas corpus is | wey, the efore to be tried as an ordinary 47-435. action at law: Ex rel. Shaw v. Nacht 43-653; Drumb v. Keene, R. & 2613. SEC 2514. An error of the plaintiff as to the kind of proceed- Error: effect of. ings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer of the action to the proper docket. Ar action erroneously brought at law may be changed to an act on in equity without leaving the court: Holmes v. Clark, 10–423, 427. An error in commencing an action in equity instead of at law, or rice rers, should be corrected as here provided.. It is not a ground of demurter: Conyngham v. Smith. 16471; Brown v. Mallory. 26-469; Wright v. McCormick, 22–545. changed into the proper proceeding as g, 18-246; Traer v. Lytle, 20-301; Where an answer to a petition at law set up both legal and equitable defenses and no separation of the legal and equitable issues was had on the trial, held, on a peal, that it would be treated as an equitable action: VanOrman v. Merrili, 27–476. See, also, notes to § § 2517 and 2519. That plaintiff has a full, speedy and complete remedy at law is not proper ground for demurrer. The remedy is by motion to have the action SEC 2515. Such error may be corrected by the plaintiff with- How corrected out motion at any time before the defendant has answered, or by plaintiff. afterwards, on motion in court. R. 2614. 8 R. 2015, 2616. SEC 2516. The defendant may have the correction made by By defendant. motion at or before the filing of his answer, where it appears by the provisions of this code the wrong proceedings have been adopted. The motion here contemplated cannot be made after filing an answer, nor at the time of filing an answer to an amended petition, when the fact of error in the proceedings was appa rent but not taken advantage of, at SEC. 2517. Where the action has been properly commenced Ordinary by ordinary proceedings, either party shall have the right, by changed int motion, to have any issue heretofore exclusively cognizable in R. 2017. equity tried in the manner hereinafter prescribed in cases of equitable proceedings; and if all the issues were such as were heretofore cognizable in equity, though none were exclusively so, the defendant shall be entitled to have them all tried as in cases of equitable proceedings. able proceedings: Byers v. Roda- The issue must be made before the transfer to the chancery docket can be ordered by the court. The discre- The equitable issues which either tion of the court is a legal one and is party elects to have tried by equitable reviewable: McHenry v. Sypher, 12-proceedings may be, and under ordi585. nary circumstances should be, first A case properly commenced by or- tried and settled: Hackett v. High, dinary proceedings is not to be trans-28-539; and after the equitable issues ferred to the equity docket on filing are thus tried, any legal issues rean answer setting up equitable de- maining are to be disposed of in the fenses but either party may have manner provided for the disposal of such equitable issue tried by equit-such issues: Rosierz v. Van Dam, Court may order change. Errors waived. Uniformity of C. '51, 2516. Actions on igments: w..ch brought. 16-175; Fan Orman v. Spafford, 16- | such equitable issue by equitable pro- To entitle a defendant to a trial of Equitable defenses may be pleaded in an action at law: See notes to § 2655. SEC. 2518. If there be more than one party plaintiff or defendant who fail to unite on the kind of proceeding to be adopted, the court, on its own motion, may direct such proceedings to be changed to the same extent as if the parties had united in asking that the same be done. SEC. 2519. An error as to the kind of proceedings adopted in the action is waived by a failure to move for its correction at the time and in the manner prescribed in this chapter; and all errors in the decisions of the court are waived unless excepted to at the time, except final judgments and interlocutory or final decrees entered of record. The objection that the action is brought by the wrong kind of proceedings cannot be taken advantage of after judgment: Hatch v. Judd, 29-95; nor can such objection be first made in the supreme court: Tugel v. Tugel, 38-349 If the proper steps to effect the change are not taken in the court below, the remedy is regarded as waived: Parshall v. Moody, 24-314; Green v. Marvel, 37-95; Knott v. Tincher, 39-628. Generally a judgment in an equitable proceeding will be sustained if objection has not been made under $25 6, t'ough the action should have been by ordinary proceedings; but if upon the merits of the case the relief granted would have been denied at law and ought not to have been given in an equitable procee ling, the judgment will not be sustained: Richmond v. D. & S. C. R. Co., 33-422, 489. Where an action is improperly prosecuted by equitable proceedings. a failure to object thereto as provided in $ 2516, operates as a waiver of a jury trial: Ibid., 490. See notes to § 2516. SEC. 2520. The provisions of this code concerning the prosecution of a civil action, apply to both kinds of proceeding, whether ordinary or equitable unless the contrary appears, and shall be followed in special proceedings not otherwise regulated so far as applicable. Proceedings to condemn property | actions: Forney v. Ralls, 30–559. for a work of internal improvement. Section applied to proceedings to should be governed, as far as practi- disbar an attorney: The State v. cable, by the rules governing ordinary | Clarke, 46-155, 159. SEC. 2521. No action shall be brought upon any judgment, against a defendant therein, rendered in any court of record of this state within fifteen years after the rendition thereof without leave of the court for good cause shown and on notice to the advers party, nor on a judgment of a justice of the peace of this state within eight years after the same is rendered, except in cases where the docket of the justice, or record of such judgment is, or shall be, lost or destroyed. This section affects the remedy and applies to judgments rendered before as well as after its passage: Watts v. Ererett, 47-269. prosecute an action is subject for demurrer: Ibid. Where the record of a judginent is lost or destroyed, suit thereon as here Failure to allege leave of court to contemplated is not intended to be |
