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3. Where the defendant has been constructively summoned thirty days.

162. The reply shall be filed on or before the calling of the cause for trial.

§ 163. In an action prosecuted by equitable proceedings, the defense must be filed on the third day of the term

1851.

When reply to be filed.

When defense to be filed in equitable pro.

1. Where the summons has been served twenty ceedings.
days before the commencement of the term, in the
county in which the action is brought, or an adjoining
county;

2. Where it has been served thirty days, elsewhere
in the state, or sixty days out of the state; or

3. Where the defendant has been constructively summoned thirty days.

§ 164. Where the service of the summons was before the commencement of the term, but not the length of the time mentioned in the last section, the defense shall be filed in thirty days after the service.

§ 165. If the answer, in equitable proceedings, contains a counter-claim or set-off, the plaintiff shall reply within twenty days after the answer is filed, or ninety days before the ensuing term.

Defense to be filed in thirty

days if served before

com. mencement of term.

When reply to

be filed to set-off or counterclaim.

Time of filing pleading may be

§ 166. The court may, for good cause shown, extend the time for filing an answer or reply, to some subsequent day extended. in that or the next succeeding term; the party applying for the delay paying the costs occasioned thereby.

§ 167. The filing of an answer or reply in the clerk's of fice in vacation, within the time allowed, with notice thereof to the opposite party, or his attorney, shall be equivalent to a filing in court.

CHAPTER 7.

General rules of pleading.

§ 168. Every pleading must be subscribed by the party, or his attorney, and the petition, answer, and reply must each be verified by the affidavit of the party, to the effect that he believes the statements thereof to be true. No pleading verified as herein required, shall be used against the party, in any criminal prosecution, or action, or proceeding for a penalty or forfeiture, as proof of a fact admitted or alledged in such pleading; and such verification shall not make other or greater proof necessary on the side of the adverse party.

Filing in clerk's

office with no

tice sufficient.

Pleadings to be verified by oath of party.

Certain pleadings not to be

§ 169. The verification by affidavit mentioned in the last section, shall not be required to the answer of a guardian verified. or committee defending for an infant, or person of unsound mind or imprisoned; nor in any case where the admission of the truth of the allegations of the petition or answer might subject the party to a criminal or penal prosecution; nor to pleadings affecting injuries to person or character.

1851.

§ 170 Neither presumptions of law, nor matters of which Presumptions judicial notice is taken, need be stated in a pleading.

of law need not be stated. Notes and accounts must be filed with pleadings.

§ 171. If the action, counter-claim, or set-off, is founded on a note, bond, bill, or other writing, as evidence of indebtedness, it must be filed as a part of the pleading, if in the power of the party to produce it. If not filed, the reason thereof must be stated in the pleading. If upon an account, a copy thereof must, in like manner, be filed with the pleading.

$172. In the construction of a pleading for the purpose Pleadings to of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.

be liberally con

strued.

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§ 173. If irrelevant or redundant matter is inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby, at the cost of the party whose pleading contained it.

§ 174. In pleading a judgment, or other determination, of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation is made in a petition, and is not controverted in the answer, or made in the answer in relation to a counter-claim or set-off, and is not controverted in the reply, it need not be proved on the trial. § 175. In pleading the performance of a condition precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated, generally, that the party duly performed all the conditions on his part; and if such allegation is not controverted as stated in the last section in regard to judgments, it shall not be necessary to prove it on trial.

§ 176. In an action for libel or slander, it shall not be necessary to state in the petition any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose ; but it shall be sufficient to state, generally, that the same was published or spoken concerning the plaintiff'; and if such allegation is not controverted as stated in section one hundred and seventy-four in regard to judgments, it shall not be necessary to prove it on the trial.

§ 177. In the actions mentioned in the last section, the defendant may, in his answer, alledge both the truth of the matter charged as defamatory and any mitigating circumstances legally admissible in evidence, to reduce the amount of damages; and whether he proves the justification or not, he may give in evidence the mitigating circum

stances.

§ 178. In an action for the recovery of real property, it Real property must be described in the petition with such convenient certainty, as to enable an officer holding an execution to identify it.

must be described in petition.

1851.

Every materi

al allegation not controvert.

true.

§ 179. Every material allegation of the petition not specifically controverted by the answer, and every material allegation of new matter in the answer, constituting a counter-claim or set-off, not specifically controverted by the ed to be taken as reply, must, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counter-claim or set-off, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require. Allegations of value, or of amount of damage, shall not be considered as true, by the failure to controvert them.

What is a ma

§ 180. A material allegation in a pleading, is one essential to the claim or defense, and which could not be stricken terial allegation from the pleading without leaving it insufficient.

Deeds or other writings relied upon must be

§ 181. If either party shall rely upon any deed, or other writing, he shall file with his pleading the original deed or writing, if in his power. If he cannot produce such deed filed. or writing, he shall so state in his pleading, together with the reasons therefor; and if such reasons are sufficient, he may file the best evidence of the contents of such deed or writing in his power. Original deeds, and other writings, filed by either party as above provided, shall remain on file for the inspection of the other party, until allowed by the court to be withdrawn; and in such case, copies, attested by the clerk, shall be substituted by the party withdrawing the originals.

CHAPTER 8.

Mistakes in pleading, and amendments.

$182. No variance between the allegation in a pleading and the proof, is to be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alledged that a party has been so misled, that fact must be shown to the satisfaction of the court, and it must also be shown in what respect he has been misled; and, thereupon, the court may order the pleading to be amended, upon such terms as may be just.

§183. Where the variance is not material as provided in the last section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.

§ 184. Where, however, the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.

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Plaintiff may

§ 185. The plaintiff may amend his petition without leave, at any time before an answer is filed, and without amend petition prejudice to the proceedings already had.

at any time before answer.

1851.

Party may reply after his demurrer is overrule 1.

Court may au

thorize amend ments of plead

ings at any time.

Parties may

al pleadings.

§ 186. Upon a demurrer being overruled, the party demurring may answer or reply.

§ 187. The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. The court may likewise, in its discretion, allow an answer or reply to be made, after the time limited by this code, or, by an order, enlarge such time. And whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may permit an amendment of such proceeding, so as to make it conformable thereto. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

§ 188. The plaintiff and defendant, respectively, may be file supplement allowed, on motion, to make a supplemental complaint, answer, or reply, alledging facts material to the case, occurring after the filing of the former petition, answer, or reply.

are

case

If pleadings

$189. When either party shall amend any pleading or amended, proceeding, and the court shall be satisfied, by affidavit or may be otherwise, that the adverse party could not be ready for trial in consequence thereof, a continuance may be granted to some day in the same term, or to another term of the

continued.

Interrogatories

may be annexed to equitable pro

ceedings.

court.

CHAPTER 9.
Interrogatories.

$ 190. In actions by equitable proceedings, either party may annex to his petition, answer, or reply, written interrogatories to any one or more of the adverse parties, concerning any of the material matters in issue in the action. The answers to which, on oath, may be read by either party, as a deposition between the party interrogating and the party answering.

§ 191. The party answering shall not be confined to reParty answer sponding merely to the interrogatories, but may state any new matter concerning the same cause of action, which shall likewise be read as a deposition.

ing interrogato

ries may state new matter.

1851.

When inter

be answered.

§192. Where the interrogatories are annexed to the petition, they shall be answered at the same time the party is required to answer the petition; where annexed to the rogatories are to answer or reply, then in twenty days after notice shall be given thereof to the adverse party or his attorney; but if answered twenty days before the term at which the action stands regularly for trial, the action shall not be postponed on account of their not being sooner answered.

Interrogato ries may be an nexed to plead

§ 193. In actions by ordinary proceedings, either party may, in like manner, annex written interrogatories to any one or more of the adverse parties to his petition, answer, ings by ordinary or reply, concerning any material matter in issue in the action, in the following cases:

1. Where the party interrogated does not reside in the same or an adjoining county.

2. Where the party interrogated is unable to attend court on account of age, infirmity, or imprisonment, or is a female.

§ 194. Where the interrogatories, in an action by ordinary proceedings, are annexed to the petition, they shall be answered at the same time the petition is required to be answered; where annexed to the answer or reply, at or before the calling of the cause for trial, where the party interrogated had reasonable notice of their being filled.

proceedings.

When to be answered.

Trial in action not to be post

poned for failure to answer inter

rogatories.

$195. The trial of an action by ordinary proceedings, shall not be postponed on account of the failure to answer the interrogatories, if the party interrogated is present in court at the trial, so that he may be orally examined; nor, in case of his absence, without an affidavit showing the facts the party believes will be proved by the answers thereto, and that the party has not filed the interrogatories, nor omitted to file them, for the purpose of delay. Whereupon, if the party will consent that the facts stated in the affidavit shall be considered as admitted by those interrogated, the trial shall not be postponed for that cause. § 196. The provisions in section one hundred and ninetyone shall apply to the answers to interrogatories in actions 1 to apply to by ordinary proceedings.

belief

Provisions in

ordinary pro. ceedings.

Answer to in.

§ 197. The party, in answering such interrogatories, shall distinguish clearly between what is stated from his person- terrogatories al knowledge, and what is stated from information or merely. An unqualified statement of a fact, shall be considered as made of his personal knowledge.

§ 198. The answers to the interrogatories shall be verified by the affidavit of the party answering, to the effect that the statements in them made of his own personal knowledge are true, and those made from the information of others, he believes to be true.

§ 199. When the party resides in the same or an adjoining county, he may be summoned by the adverse party, and compelled to testify on the trial of an action by ordinary proceedings, as any other witness.

must distinguish between knowl edge and information.

Answer to be verified by oath.

Adverse party may be sum

moned to testify adjoining coun

if in the same or

ty.

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