Page:United States Statutes at Large Volume 47 Part 1.djvu/1010

 986 72d CONGRESS. SFSS. II. CH. 127 . FEBRUARY 27, 1933 . Demurrer. SEC. 429. WHEN DEMURRER TO COMPLAINT MAY BE PUT IN .-The defendant may, at any time before answering, demur to the complaint. Ans wer. SEC. 430. ANSWER, WHAT TO CONTAIN .-The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a pla in and direct manner, of any other fa cts constituting a defense or c ounte rclai m, up oh wh ich an act ion m ight be br ought - by the defendant against the plaintiff, or his assignor, in a magistrate's court. Counterclaim. SEC. 431. IF THE DEFENDANT OMIT TO SET U P COUNTERCLAIM : If the defen dant omit to set up a cou nterc laim in the cas es me ntion ed in sec ti on 43 0, ne ith er he nor his assignee can aft er war ds maintain an ac tion again st the pla intif f the refor. Demurrer to answer. SEC. 432. WHEN PLAINTIFF MAY DEMUR TO ANSWER .-When the answer contains new matter in avoidance, or constituting a defense or a counterclaim, the plaintiff may, at any ti me before the trial, dem ur to the sa me for insufficiency, stating the re in the grounds of such demurrer. When affirmative SEC. 433. WH EN AFFIRMATIVE JUDGMENT MAY BE RENDERED FOR DE- judgment may be ren- dered. FENDANT.-Af firma tive ju dgment may be rendered for the defendant on his cross-complaint counterclaim) whenever the defendant proves that he is enti tled to mo re th an the pla intif f has prov en or when ever the plaintiff fails to prove that he is entitled to any -judgment. Proceedings on de- murrer . SEC . 434. THE PROCEEDINGS ON DEMURRER.-The proceedings on . demurrer are as follows 1. If the demurrer to the complaint is sustained, the plaintiff may, within such time, not exceeding two days, as the court all ow s, am end his c ompla int ; 2. If the demurrer to a complaint is overruled, the defendant may answer forthwith ; 3. If the dem urrer to an ans wer is sus taine d, the def endan t may amend his answe r wit hin s uch t ime, not e xceed ing two da ys, as the court may allow ; 4. If the demu rrer to an answ er is over ruled, the acti on mu st pr o- ce ed as if no demurrer had be en interposed . Amendment ofplead- SEC. 435. AMENDMENT OF P LE ADI NG S .-Either party ma , at any ings. ti me before the conclusion of the trial, amend any plea ing but if the amendment is made after the issue, and it appears to the satisfaction of the court, by oath, th at an adjournment is necessary to the adverse party in consequence of such amendment, an adjourn- ment must be gr anted. The court may also, in its discretion, when an adjournment will by the amendment be rendered necessary, re- quire as a condition to the allowance of su ch amendment, made after issue join ed, the pa yment of c osts -to the ad verse party. m Relief against judg- REL IEF A GAINS T JUD GMENT .- Th e court may also, on su ch terms as may be just, and on payment of costs, relieve a party from a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect, but the application for such relief must be made within ten days after notice of the entr of the judg- ment and upon an affidavit showing good cause therefor. to Answe r amended ord pleadings . ea din SEC. 436. ANSW ER OR DEMU RRER T O AMENDED PLEADINGS : When a ple ad ing is amended, the adverse par ty may answer or dem ur to it wit hin s uch t ime, as the cou rt may all ow, not ex ceedi ng fi ve da ys aft er notice of the amendment.