Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/59

== CODE CIVIL PROCEDURE ==

Commencing §§ 7434-7435
is successful, and the judgment or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. Any such defendant, who shall have received a copy of the summons and complaint in the action, mailed to him as provided in section 7430, or upon whom the summons and complaint shall have been personally served out of the state, as provided in section 7431, shall be deemed to have had notice of the pendency of the action, and of the judgment entered therein.

[R.C. 1905, § 6846; C. Civ. P. 1877, § 104; R.C. 1895, § 5260; 1901, ch. 67.]

As to similar provisions in Cal. Code Civ. Proc., § 473, see Dean v. Superior Court, 63 Cal. 473; Ketchem v. Superior Court, 65 Cal. 494, 4 Pac. 492; California B. S. Co. v. Porter, 68 Cal. 369, 9 Pac. 313; Wiggin v. Superior Court, 68 Cal. 398, 9 Pac. 646; Wharton v. Harlan, 68 Cal. 422, 9 Pac. 727; ''Wolff v. Canadian Pac. R.'', 89 Cal. 332; 26 Pac. 825; Douglass v. Todd, 95 Cal. 655, 31 Am. St. Rep. 247, 31 Pac. 623; People v. Thomas, 101 Cal. 571, 36 Pac. 9; ''People ex rel. Schwartz v. Temple'', 103 Cal. 447, 37 Pac. 414, 416; Giddings v. The 76 L. & W. Co., 109 Cal. 116, 41 Pac. 788; Lee v. Murphy, 119 Cal. 364, 51 Pac. 549, 955; Tuttle v. Scott, 119 Cal. 586, 51 Pac. 849; Banta v. Siller, 121 Cal. 414. 53 Pac. 935: Bank of Woodland v Heron, 122 Cal. 107, 54 Pac. 537; Tibbet v. Tom Sue, 122 Cal. 206, 54 Pac. 741; Fountain W. Co. v. Superior Court, 139 Cal. 648, 73 Pac. 590; Burns v. Superior Court, 140 Cal. 1, 73 Pac. 597; Grannia v. Superior Court, 143 Cal. 630, 77 Pac. 647; Smith v. Roberts, 1 Cal. App. 148, 81 Pac. 1026; Lewis v. Rigney, 21 Cal. 268; DeUprey v. DeUprey, 27 Cal. 329, 87 Am. Dec. 81; Casement v. Ringgold, 28 Cal. 335; Hallock v. Jaudin, 34 Cal. 167.

§ 7435. Joint and several debtors. When the action is against two or more defendants, and the summons is served on one or more, but not on all of them the plaintiff may proceed as follows:

1. If the action is against defendants jointly indebted upon contract he may proceed against the defendant served, unless the court otherwise directs; and if he recovers judgment, it may be entered against all the defendants thus jointly indebted so far only as that it may be enforced against the joint property of all and the separate property of the defendant's served, and if they are subject to arrest, against the persons of the defendant served; or,

2. If the action is against defendant severally liable, he may proceed against the defendant served in the same manner as if they were the only defendant.

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone.

4. If the name of one or more partner shall for any cause have been omitted in any action, in which judgment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plaintiff in case the judgment therein shall remain unsatisfied may be action recover of such partner separately upon proving his joint liability, notwithstanding he may not have been named in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action.

[R.C. 1905, § 6847; C. Civ. P. 1877, § 105; R.C. 1899, § 5261.]

Principal and surety; set-off by surety. Clark v. Sullivan, 2 N.D. 103, 49 N.W. 416, 13 L.R.A. 223.

Action against partners. Braithwaite v. Power 1 N.D. 455, 48 N.W. 354.

Trail as to one of several codefendants. Black Hills Bank v. Kellogg, 4 S.D. 312, 56 N.W. 1071; Ross v. Wait, 4 S.D. 584, 57 N.W. 497.

Action on official bond when sureties are liable in different amounts. Custer County v. Albien, 7 S.D. 482, 64 N.W. 533.

Service of summons on partner as managing agent of supposed corporation gives jurisdiction to permit amendment of summons and complaint so as to show action is against copartnership. Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 40 L.R.A. (N.S.) 566, 135 N.W. 180

Form of judgment under statute permitting action to proceed from service of less than all the partners or joint debtors sued. 43 L.R.A. (N.S.) 540.