Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/52

== CODE CIVIL PROCEDURE ==

Civil Actions §§ 7422-7425
§ 7422. Form of summons. The summons exclusive of the title of the action and the subscription must be substantially in the following form, the banks being properly filled:

The state of North Dakota to the above named defendant:

You are hereby summoned to answer the complaint in this action and to serve a copy of your answer upon the subscriber within thirty days after the service of this summons upon you, exclusive of the day of service; and in case of your failure to appear or answer judgment will be taken against you by default for the relief demanded in the complaint

Dated....................

[R.C. 1905, § 6834; R.C. 1895, § 5248.]

Summons making erroneous statement of fact will be set aside on motion. St Paul Harvester Co. v. Forbreg, 2 S.D. 357, 50 N.W. 628; Berry v. Bingaman, 1 S.D. 525, 47 N.W. 825.

Necessity of action being one on contract. Bradley v. Mueller, 22 S.D. 534, 118 N.W. 1035.

Effect of writ or process issued without seal of court. 20 L.R.A. 424.

'§ 7423. Contents of summons. A copy of the complaint need to be served with the summons. In such case the summons must state that the complaint is, or will be, filed with the clerk of the district court in the county in which action is commenced, and if the defendant within thirty days thereafter causes notice of appearance to be given and in person, or by attorney, demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof must, within thirty days thereafter, be served accordingly, and after such service the defendant has thirty days to answer, states that the complaint is or will be filed with the clerk of court and the same is not so filed within thirty days after the date of such summons, the action will be deemed discontinued.

[R.C. 1905, § 6835; C. Civ. P. 1877, § 99; R.C. 1899, § 5249; 1903, ch. 3.]

Summons by mail is served when summons is mailed. Clyde v. Johnson, 4 N.D. 92, 58 N.W. 512.

Demand of copy of complaint may be waived. Whittaker v. Warren, 14 S.D. 611, 86 N.W. 638.

Notice of appearance and demand for service of copy of complaint served within sixty days from first publication of summons, must be complied with by service of copy of complaint. Murphy v. Missouri & K. Land & L. Co., 22 N.D. 336, 133 N.W. 913.

§ 7424. Notice of no personal claim. In the case of a defendant against whom no personal claim is made the plaintiff may deliver to such defendant with the summons a notice subscribed by the plaintiff may deliver to such defendant forth the general object of the action, a brief description of the property affected by it, if it affects specific, real or personal property, and that no complaint need be served on such defendant, unless within the same time for answering he shall in writing demand the same. If a defendant on whom such notice is served unreasonably defends the action, he shall pay costs to the plaintiff.

[R.C. 1905, 6836; C. Civ. P. 1877, § 100; R.C. 1899, § 5250.]

§ 7425. Lis pendens, effect of. In an action affecting the title to real property the plaintiff at the time of filing the complaint or at any time afterwards, or the defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief, at the time of filing his answer or at any time afterwards. If the same is intended to affect real property, may file for record with the register of deeds of each county in which the real property is situated a notice of the pendency of the action. Containing the names of the parties, the object of the action and the description of the real property in that county affected thereby; from the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby; but if the action is for a foreclosure of a mortgage or the enforcement of a mechanic's or miner's lien, no such notice need be filed; and every person, whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or