§ 547. In most of the states codes have been adopted by which the distinctions in the forms of equity and common law pleadings have been abolished and one form of action is substituted under which all rights legal and equitable may be enforced. · In a few of the states the old distinction between proceedings in equity and at law are still maintained. To ascertain the scope and limits of the jurisdiction of these state courts, recourse must be had to the laws creating them.

CHAPTER XLI.

CIVIL PROCEDURE.

We will now consider the order in which civil actions are commenced and prosecuted to final judgment. Owing to the diversity of legislation in the code states and the practice that has grown up in these states under the rulings of the courts, it is manifestly impossible in our limited space to give the order and rules of proceeding and practice in all the states, and we shall content ourselves with some general statements which will apply to most if not all of them.

§ 548. Civil actions-Courts - Their officersJuries. An action is a proceeding in a court by a plaintiff against a defendant, to establish a right or to obtain a remedy. In every court there must be a judge, whose duty it is to preside and direct the proceedings of the court and to decide such matters of law or fact as may be submitted to him; a clerk, whose duty it is to keep a faithful minute and record of all the proceedings of the court and to perform such other duties as the law and rules of practice may re quire; a sheriff, who is to maintain order in the court, to obey the orders of the judge and to serve the process of the court. It is the duty of the jury, under to the directions of the court as to matters of law,

decide the questions of fact submitted to them,

and

to put their decision in the form of a verdict, to which they unanimously agree.

§ 549. Actions, how commenced Parties.-In every action there must be two adversary parties and a real controversy. Courts are not organized for the purpose of deciding abstract questions of law unless it is necessary to establish the substantial rights of the parties to the action. To begin and prosecute a fictitious proceeding in a court is a contempt of court. The plaintiff begins his suit by filing in the proper court a statement in writing showing the facts upon which he bases his claim for redress. This is called a declaration, complaint, petition, or bill.

§ 550. The process.-The clerk issues a writ bearing the seal of the court and attested by the clerk, which is delivered to the sheriff for service upon the defendant who is named in the writ. The writ or summons requires the defendant to appear and plead to the action by a day specified, and must be served as required by law, either by reading it to the defendant in person, by leaving a copy of it at his usual place of residence, or by leaving a copy at some other place designated by law. Sometimes the form of the action is such that the writ issued requires the sheriff to seize the person of the defendant or goods in his possession. And in cases of foreign attachment the goods of a defendant may be seized in a state where he is not a resident to satisfy plaintiff's claim. In actions where the defendant can not be served with process, and the court has jurisdiction of the subject-matter of the controversy, constructive notice is given by publication in a newspaper, or service of summons may be made upon defendant in

another state, when the statute allows it. But in cases where constructive notice alone is given, the judgment of the court is binding upon the defendant only so far as it relates to the property within the jurisdiction of the court.

§ 551. How served and returned.-If the sheriff finds the defendant, it is his duty to serve the process, to indorse upon it the time and manner of serv ice, and to return and file it with the clerk who issued it. The defendant may not wish to contest the action, in which case he fails to appear in court, and judg ment is taken against him by default. If he wishes to defend he must enter his appearance and file his defense according to the rules of practice of the court where the action is pending.

§ 552. Matters of defense.-If a defendant denies the right of the court to hear the controversy, he objects to the jurisdiction. If the court has jurisdiction and the suit is properly brought, the defendant may be willing to admit that the facts stated in plaintiff's complaint are true, but may insist that they are not sufficient in law to entitle the plaintiff to the redress he seeks; in such case he files a pleading called a demurrer, and if the court sustains the posi tion of the defendant, judgment is given against the plaintiff, who has the option to amend his faulty pleading, or to appeal from the judgment. In the same way a demurrer may be interposed to a defective answer or reply, if it does not in the opinion of plaintiff state facts sufficient to constitute a good defense or reply. A demurrer raises what is called an issue of law. A pleading which denies the allegations of another pleading raises an issue of fact. An answer which

admits the sufficiency of the complaint, but alleges new matter which makes a good defense to plaintiff's claim, is called an answer in confession and avoid

ance.

§ 553. Objection to jurisdiction, how and when made. A defendant who wishes to object to the jurisdiction of the court over the parties to the suit must enter a special appearance for that purpose. If he enters his appearance generally, he waives his right to make such a plea. But if the court has no jurisdiction over the subject-matter, all proceedings in regard to it are void. If a defendant is sued in one jurisdiction, when he has a right to demand that he should be sued in another, he can give the court jurisdiction by appearing to the action or by failing to plead to the jurisdiction. If one court should proceed to try an action in relation to a matter, the jurisdiction of which by law belongs exclusively to another court, all its proceedings would be void. If the facts showing want of jurisdiction appear upon the face of plaintiff's complaint, the court will dismiss the action upon the motion of the defendant. If the facts do not so appear they must be brought to the attention of the court by a special plea to the jurisdiction.

§ 554. Answers or pleas in abatement.-A defendant may file an answer in abatement, and this may be based on defects in the process, defects in the service of process, incapacity of plaintiff to sue, incapacity of the defendant to be sued, misdescription of the parties, plaintiff or defendant, misjoinder of parties, non-joinder of parties, another action pending for the same cause between the same parties. Some of these defects may be brought to the atten