Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/27

== CODE CIVIL PROCEDURE ==

Time of §§ 7355-7358
'''§7355. Distinction between actions at law and suits in equity abolished. Parties named.''' The distinction between actions at law and suits in equity and forms of all such actions and suits heretofore existing are abolished; and there shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. In such action the party complaining shall be known as the plaintiff and the adverse party as the defendant.

[R.C. 1905, § 6767; C. Civ. P. 1877, §§ 33, 34; R.C. 1899, § 5181.]

Constitutional rights not violated by this section Kenny v. Mckenzie, 25 S.D. 485, ---L.R.A. (N.S.) ---, 127 N.W. 597.

Does not change common law practice to recover on quantum meruit. Caldwell v. Myers, 2 S.D. 36, 49 N.W. 164.

Refers to actions at law and suits in equity, not to special proceedings. State v. Carey, 2 N.D. 36, 49 N.W. 164.

Intrinsic distinctions between actions not destroyed. Black v. Elevator Co., 7 N.D. 129, 73 N.W. 90; Macomb v. Lake County, 13 S.D. 103, 82 N.W. 417.

Section implies inhibition to bringing to civil actions in name of county to oust officers. Wishek v. Becker, 10 N.D. 63, 84 N.W. 590.

Distinction in from of action abolished. Law and equity still remain two distinct systems. Sykes v. Bank, 2 S.D. 242, 49 N.W. 1058

Abolition of distinction between actions at law suits in equity applies to from only and not inherent substantive principles which underlie the two systems procedure. 'Byne v. McKeachie, 29 S.D. 476, 137 N.W. 343.

§ 7356. Action upon judgments. No action shall be commenced upon a judgment rendered in any court of this state between the same parties within nine years after its rendition without leave of the court for good cause shown and notice to the adverse party.

[R.C. 1905, § 6768; C. Civ. P. 1877, § 35; R.C. 1895, § 5182.]

Action may be brought on a judgment without leave of court and leave be given nunc pro tunc. ''Stoddard Mfg. Co. v. Mattice'', 10 S.D. 253, 72 N.W. 891.

Cause of action cannot be created or caused to accrue nun pro tune. Osborne v. Lindstrom, 9 N.D. 1, 81 N.W. 72, 81 Am. St. Rep. 516, 46 L.R.A 715.

Judgment dead so far as it relates to liens and for purposes of execution, will support action against judgment debtor after ten years have elapsed. ''Union Nat. Bank v. Ryan'', 23 N.D. 482, 137 N.W. 449.

When actions accure and limitation of, see Osborn v. Lindstrom, 9 N.D. 1, 81 N.W. 72.

§ 7357. Issues must be stated. Feigned issues are abolished, and instead thereof in cases where the power now exist to order a feigned issue, or when a question of fact not put in issue by the pleadings is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for trial.

[R.C. 1905, § 6769; C. Civ. P. 1877, § 36; R.C. 1899, § 5183.]

ARTICLE 1.

1. In General, § 7358

2. TIME OF COMMENCING ACTIONS FOR THE RECOVERY OF REAL PROPERTY, §§ 7359-7372

3. TIME OF COMMENCING OTHER ACTIONS, §§ 7373-7382.

4. GENERAL PROCISIONS AS TO THE TIME OF COMENCING ACTIONS, §§ 7383-7394

§ 7358 Limitations. Civil actions can only be commenced within the periods prescribed in this code after the cause of action shall have accrued, except when in special case a different limitation is prescribed by statute. But the objection that action was not commenced within the limit can only be taken by answer.

[R.C. 1905, § 6770; C. Civ. P. 1877, § 37; R.C. 1899, § 5184.] Leviticuss007 (talk) 13:41, 2 November 2022 (UTC)Leviticuss007