Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/37

== CODE CIVIL PROCEDURE ==

Time of §§ 7382-7384
When does statutes of limitations begin to run against action upon obligations of municipal or quasi municipal body payable out of a particular fun. 10 L.R.A. (N.S.) 478.

Effect of laches on state's rights to oust a corporation of its rights and franchises. 14 L.R.A. (N.S.) 336.

§ 7383. When action deemed commenced. An action is commenced as to each defendant when the summons is served on him. or on a codefendant who is a joint contractor or otherwise united in interest with him. An attempt to commence an action is deemed equivalent to the commencement thereof within the meaning of this chapter, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants, or one of them usually or last resided; or, if a corporation is defendant, to the sheriff or other officer of the county in which was situated the principal place of business of such corporation. or where its general business was transacted, or where it kept an office for the transactions of business. But such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days.

[R.C. 1905, § 6795; C. Civ. P. 1877, § 62; R.C. 1895, § 5209.]

Summons deemed issued when signed by attorney. Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296.

No person can be deemed party to an action unless he is served with summons. Bunker v. Taylor, 10 S.D. 526, 74 N.W. 450.

Motion to quash service and to dismiss lien constitute a waiver of defect in service. Reedy v. Howard, 11 S.D. 160, 76 N.W. 304.

Action cannot be instituted by stipulation. Ramadell v. Duxberry, 14 S.D. 222, 85 N.W. 221.

When action is deemed commenced. Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296

Placing summons in sheriff's band not sufficient, unless service made. Mars v. Min. Co., 7 S.D. 605, 65 N.W. 19.

This section qualifies C.L., § 4892 (S.D. Rev. Code Civ. Proc., § 103; N.D.C.L. 1913, § 7420). Bunker v. Taylor, 10 S.D. 526, 74 N.W. 450.

When service quashed action falls, except in attachment and where limitations might Indorement stamped on back of summons and complaint showing time of filing is sufficient evidence of time of commencement of action. Galehouse v. Minneapolis, St P. & S. Ste. M.R. Co.. 22 N.D. 615, 47 L.R.A. (N.S.) 965, 135 N.W. 189.

When action based on service by publication deemed commenced, for purpose of statute of limitations. 28 L.R.A. (N.S.) 702.

Relation of new pleading to statute of limitations. 3 L.R.A. (N.S.) 259; 33 L.R.A. (N.S.) 195.

As to similar provisions in Cal. Code Civ. Proc., § 350, see Jeffers v. Cook, 58 Cal. 147; Baker v. Baker, 136 Cal. 302, 68 Pac. 971.

'''§ 7384. Exception. Absentee.''' If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into the state; and, if after such cause of action shall have accrued such person shall depart from and reside out of his state and remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action; provided, however, that the provisions of this section shall not apply to the foreclosure of real estate mortgages by action or otherwise; provided, further, that actions against trustees acting under the town-site laws of the United States and this state, must be commenced within two years of action now existing, this section shall be effective on and after January first, 1912.

[1911, ch. 192; R.C. 1905, § 6796; C. Civ. P. 1877, § 63; R.C. 1895, § 5210; 1905, ch. 5]

Maker or note executed in another state subsequently moving to South Dakota regarded absent from state during time after note is due and before moving. McConnell v. Spicker, 15 S.D. 98, 87 N.W. 574.

Applicable to action to foreclose mortgage on real property. ''Colonial & U.S. Mortg. Co. v. Northwest Thresher Co.'', 14 N.D. 147, 70 L.R.A. 814, 116 Am. St. Rep. 642, 103 N.W. 915, 8 A. & E. Ann. Cas. 1160; ''Colonial & U.S. Mortg. Co. v. Flemington'', 14