Abbildungen der Seite
PDF
EPUB

3. When the answer sets up a counter-claim, the reply by the plaintiff.

§ 1086. The pleadings may be oral, except when the title to real property is brought in question, or they may be in writing; if oral, the substance of them must be entered by the justice in his docket; if in writing, they must be filed in his office, and a reference to them made in the docket. They are not required to be in any particular form, but must be such, as to enable a person of common understanding to know what is intended.

§ 1087. The complaint must state in a plain and direct manner, the facts constituting the cause of action.

§ 1088. The answer may contain a denial of any of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts, constituting a defence, or a counter-claim upon which an action might be brought by the defendant against the plaintiff in a justice's court.

4

§1089. When the answer contains a counter-claim, the plaintiff may reply, denying any of the material allegations relating thereto.

§ 1090. A statement in an answer or reply, that the party has not sufficient knowledge or information in respect to a particular allegation in the previous plead

ing of the adverse party, to form a belief, is equivalent to a denial.

§ 1091. When the cause of action or counter-claim arises upon an account or instrument for the payment of money only, it is sufficient for the party to deliver the account or instrument to the court, and to state, that there is due to him thereon, from the adverse party, a specified sum, which he claims to recover or set off. The court may at the time of the pleading, require that such writing or account be exhibited to the inspection of the adverse party, with liberty to copy the same; or if not so exhibited, may prohibit its being afterwards given in evidence.

§ 1092. Every complaint, answer, or reply, must be verified by the oath of the party pleading, or if he be not present, by the oath of his agent or attorney, to the effect that he believes it to be true. The verification must be oral or in writing, in conformity with the pleading verified.

§ 1093. Every material allegation in a complaint, or relating to a counter-claim in an answer, not denied by the pleading of the adverse party, must, on the trial be taken to be true, except, that when a defendant, who has not been served with a copy of the complaint with the summons, fails to appear and answer, the plaintiff cannot recover, without proving his case.

§ 1094. Either party may object to a pleading of his adversary, or to any part thereof, that it is not sufficiently

explicit to enable him to understand it, or that it contains no cause of action or defence, although it be taken as true.

If the court deem the objection well founded, it must order the pleading to be amended, and, if the party refuse to amend, the defective pleading must be disregarded.

§ 1095. A variance between the proof on the trial, and the allegations in a pleading, must be disregarded as immaterial, unless the court be satisfied, that the adverse party has been misled to his prejudice thereby

§ 1096. The pleadings may be amended, at any time before the trial, or during the trial, or upon appeal, to supply any deficiency or omission in the allegations or denial, necessary to support the action or defence, when, by such amendment, substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of such amendment, an adjournment must be granted. The court may also, in its discretion, require as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the court, not exceeding three dollars; but such payment cannot be required, unless an adjournment is made necessary by the amendment; nor can an amendment be allowed after a witness is sworn on the trial, when an adjournment thereby will be made necessary.

§ 1097. When, by the defendant's answer, the title to real property is brought in question, such answer must be in writing, subscribed by the defendant or his attorney.

§ 1098. If the defendant have been arrested, such answer must be disregarded, unless the defendant also immediately deliver to the justice a written undertaking, executed by the defendant, and one sufficient surety; or if the defendant be absent, by two sufficient sureties, approved by the justice; to the effect, that the defendant will always render himself amenable, within such county, to the process of the supreme court, during the progress of the action, and to such as may be issued to enforce the judgment, which may be given therein; and in case of default, to pay all damages, not exceeding one hundred dollars.

In the next section, the mode of transferring the cause to the supreme court, is changed to a simple order of transfer by the justice. This change renders a change in the undertaking also necessary, as contained in this section.

§ 1099. Upon the defendant's making such an answer, or if he have been arrested, upon such answer and undertaking, the justice must enter an order in his docket transferring the action to the supreme court; and the proceedings must thenceforth be conducted in that court, in all respects as if the action had been first commenced therein; and costs shall there be given without regard to the amount recovered; the

costs before the justice being added as disbursements. The plaintiff may, however, by a notice served within twenty days thereafter, decline to prosecute his action in the supreme court; in such case, the claim shall be deemed abandoned, and no costs shall be recovered against him in the supreme court.

§ 1100. The defendant is not at liberty to give evidence, by which the question of title to real property is raised on the trial before a justice. And when from the plaintiff's own showing, on the trial, it appears that the determination of the action will necessarily involve the decision of a question of title to real property, the justice must dismiss the action, with costs, stating on his docket the reason therefor; but such dismissal shall not preclude the plaintiff from an action in the supreme court for the same cause.

§ 1101. When the title to real property is set forth in the answer as provided in section 1097, or appears on the trial as provided in the last section, and there are other causes of action in the complaint, not affected by the question of title, the order to transfer or to dismiss the action, shall not include such other causes; but as to them, the action must be severed, and tried before the justice in the same manner, as if the question of title had not been raised.

§ 1102. Upon the return day, if a jury be required, or if the justice be actually engaged in other cfficial busi

« ZurückWeiter »