Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/53

== CODE CIVIL PROCEDURE ==

Commencing §§ 7425-7426
incumbrancer and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he was a party to the action. For the purpose of this section an action shall be deemed to be pending from the time of filing such notice; provided, however, that such notice shall be of no avail unless it shall be followed by the first publication of the summons, or by the personal service thereof on a defendant, within sixty days after such filing. And the court tin which the action was commenced may, at any time on application of any person aggrieved and on good cause shown and on such notice as shall be directed or approved by the court, order the notice authorized by this section to be cancelled of record in whole or in party by the register of deeds of any county in whose office the same may have been filed or recorded, and such cancellation shall be made by an indorsement to that effect on the margin of the record which shall refer to the order. Such cancellation may in like manner be made by the register of deeds upon a written request, directing such cancellation, signed by the party or the attorney of the party who caused such notice to be filed.

[R.C. 1905, § 6837; C. Civ. p. 1877, § 101; 1885, ch. 22, § 1; R.C. 1895 § 5251.]

Lis pendens must contain names of proper parties. Buxton v. Sargent, 7 N.D. 503, 75 N.W. 811.

Lis pendens will not prolong judgment lien. Ruth v. Wells, 13 S.D. 482, 83 N.W. 568, 79 Am. St. Rep. 902.

Lis pendens a constructive notice. McCarthy v. Speed, 12 S.D. 7, 80 N.W. 135, 50 L.R.A. 190.

Lien of prior unrecorded mortgage or deed superior to attachment with lis pendens. Kohn v. Lapham, 13 S.D. 78, 82 N.W. 408; Bateman v. Backus, 4 D. 433, 34 N.W. 66; Roblin v. Palmer, 9 S.D. 36, 67 N.W. 949; Hale v. Grisby, 12 S.D. 198, 80 N.W. 199.

Purchaser of realty in litigation acquires good title if no lis pendens has been filed. Smith v. Gale, 144 U.S. 509, 36 L.ed. 521, 12 S. Ct. R. 674.

Grantee of property is entitled thereto as against subsequent judgment in action to quiet title against grantor where no lis pendens was filed. Gilman v. Carpenter, 22 S.D. 123, 115 N.W. 659.

Recording of notice of pendency of action to foreclose mortgage is not required. Rhomberg v. Bender, 28 S.D. 609, 134 N.W. 805.

The law of lis pendens. 14 Am. Dec. 774; 39 Am. rep. 487; 56 Am. St. Rep. 853.

Suit of specific performance of contract in relation to real property as lis pendens. 36 L.R.A. (N.S.) 552.

Beginning of lis pendens as to right asserted by defendant as basis of affirmative relief. 8 L.R.A. (N.S.) 552.

Filing of lis pendens as notice of assignment. 66 L.R.A. 771.

Effect of filing of lis pendens on marketability of title. 38 L.R.A. (N.S.) 29.

Protection to one purchasing after decree and before any steps have been taken to review the same. 10 L.R.A. (N.S.) 443.

Rights of one acquiring interest in property from party to suit pending proceedings in appellate court. 27 L.R.A. (N.S.) 735.

As to similar provision in Cal. Code Civ. Proc., § 409, see Jeffers v. Cook, 58 Cal. 147; Roach v. Riverside W. Co., 74 Cal. 263, 15 Pac. 776; Randall v. Duff, 79 Cal. 115, 3 L.R.A. 754, 19 Pac. 532, 21 Pac. 610; Brock v. Pearson, 87 Cal. 581, 25 Pac. 963; Warnock v. Harlow, 96 Cal. 298, 31 Am. St. Rep. 209, 31 Pac. 166; McNamara v. Oakland B. & L. Assoc., 132 Cal. 247, 64 Pac. 277; Page v. Chase Co., 145 Cal. 578, 79 Pac. 278; Richardson v. White, 18 Cal. 102; Fogarty v. Sparks, 22 Cal. 142; Sampson v. Ohleyer, 22 Cal. 200; Curran v. Shattuck, 24 Cal. 427; Watson v. Dowling, 26 Cal. 124; Long v. Neville, 29 Cal. 131; Sharp v. Lumley, 34 Cal. 611; Corwin v. Bensley, 43 Cal. 253; Reeve v. Kennedy, 43 Cal. 643; Partridge v. Shepard, 71 Cal. 470, 12 Pac. 480.

§ 7426. Summons, how served The summons shall be served by delivering a copy thereof as follows:

1. If the defendant is a minor under the age of fourteen years, to such minor personally and also to his father, mother or guardian; or if there is none within the state, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.

2. If the defendant is a person judicially declared to be of unsound mind or incapable of conducting his own affairs in consequence of habitual drunkenness or any other cause and for whom a guardian has been appointed, to such guardian and to the defendant personally.