Page:The American Cyclopædia (1879) Volume XIV.djvu/33

 PROCESS PKOCLUS 25 defendant, who should be amerced in case of his non-appearance. If the sheriff made re- turn that the defendant had no goods whereby he could be attached, or if after attachment he failed to appear, the court issued a writ of capias commanding the sheriff to take the de- fendant's body. This writ and all others sub- sequent to it were called judicial, because, as we have already seen, they proceeded imme- diately from the court, and not from chancery. The proceedings before capias became in time merely formal, and it was usual to sue this out in the first instance upon a supposed return of the sheriff. The old and somewhat compli- cated and inconvenient process for the com- mencement of suits is now abolished in Eng- land, and a simple summons supplies the place. The proceedings in civil suits vary in the different states of the Union, and frequently in different courts of the same state. In some states the old common law procedure, modified more or less by statute, is in use, while in others a code of civil procedure similar to that of New York has been adopted. (See CODE, vol. v., p. 10.) The necessary proceedings in the regular course of a civil suit in the New York supreme court, to which a defence is in- terposed, are as follows: 1. The service, by delivering a copy to the defendant personally, of a summons, which may or may not be ac- companied with the complaint, and which re- quires answer to be made to the complaint within 20 days, and contains a notice, accord- ing to the nature of the suit, that in default of answer judgment will be taken for a spe- cified sum, or that application will be made to the court for the relief demanded in the complaint, a. The service within 20 days on plaintiff's attorney by defendant's attorney of a notice of appearance in the suit, with a de- mand for a copy of the complaint. &. The service within 20 days by plaintiff's attorney on defendant's attorney of a copy of the com- plaint, setting forth the grounds of the suit and demanding the appropriate judgment. 2. The service within 20 days on plaintiff's at- torney by defendant's attorney of a copy of the answer, containing a denial of the allega- tions of the complaint, or new matter, such as payment, constituting a defence to the plain- tiff's claim, c. If the answer, as is sometimes the case, contains an affirmative claim against the plaintiff, the service within 20 days by plaintiff's attorney on defendant's attorney of a reply interposing a denial or defence to such claim. 3. The service by the attorney of either party desiring to bring on the case for trial, on the attorney for the other party, of a notice of trial at least 14 days before the be- ginning of the term of court for which the no- tice is given. 4. The filing with the clerk of the court, at least eight days before the be- ginning of the term, by the attorney giving notice of trial, of a note of issue containing certnin particulars to enable the clerk to place the case on the calendar of the court. 5. The trial, with or without a jury according to the nature of the suit, when the case is reached in its order on the calendar. 6. The filing in the clerk's office by the attorney for the prevailing party of the judgment roll, con- sisting of a certified copy of the clerk's min- utes taken on the trial and a statement of the judgment drawn up by the attorney, together with the summons, complaint, answer, &c. 7. The issuing by the attorney for the prevail- ing party of an execution to the sheriff, who returns the same within 60 days, satisfied or unsatisfied as the case may be. When the complaint is served with the summons, a and 5 are not required. There are numerous col- lateral and subsidiary proceedings which may, and some of which commonly do occur in a suit. The time for the service of papers may be extended by the court. When the losing party desires to appeal from the judgment, he must upon notice to the other party have a " case " settled by the judge, which shall pre- sent the question to be considered by the higher court. A notice of appeal must be served on the prevailing party by the appellant within 30 days after he shall have received written notice of the judgment, and he must also serve on the prevailing party printed copies of the case. Either party may serve on the other a notice of argument and file a note of issue, when the case is placed on the calendar of the appellate court and argument had and judg- ment entered in due course. The appeal in the first instance is to the general term of three judges, and from their decision another appeal may be taken in similar manner to the court of appeals. When the appellant desires all proceedings to enforce the judgment to be stayed pending the appeal, he must furnish an undertaking with sureties to the effect that he will pay the judgment with costs and dam- ages if it be affirmed. In the criminal law process applies in an extensive sense to all those instruments which are used by compe- tent authority for the purpose of bringing a party into court, or of executing the judgment of the law upon him. PROCLl'S, a Greek philosopher of the Neo- Platonic school, born in Constantinople in A. D. 412, died in Athens in 485. In his child- hood he lived at Xanthus in Lycia, afterward for several years in Alexandria, studying un- der the most eminent teachers, and before he was 20 years old removed to Athens. On the death of Syrianus he succeeded him in the school at Athens, and hence is sometimes called Diadochus (the successor). He adopted the ascetic system which became common in the later Nee-Platonic school, abstained almost entirely from animal food, refused to marry, spent his money freely in acts of benevolence, and observed numerous fasts and vigils. He worshipped the sun and moon, the spirits of heroes and philosophers, and even the spir- its of the whole human race, and celebrated all important religious festivals, no matter of