§ 718. Computation of time Rule 6(a) of the Federal Rules of Civil Procedure applies to the computation of time in civil actions in the magistrates' courts. § 719. Service and filing of pleadings and other papers; motions; notice of orders or judgments The following provisions of the Federal Rules of Civil Procedure apply to the magistrates' courts: (1) Rule 5, relating to the service and filing of pleadings and other papers; (2) Rule 6(d), relating to the time for service of motions and affidavits: (3) Rule 6(e), relating to additional time after service by mail; (4) Rule 7(b) (1), relating to motions; and (5) Rule 77 (d), relating to notice of orders or judgments. § 720. Limitation of actions Sections 41-45 and 71-82 of this title apply to the magistrates' courts to the extent to which they refer to the limitation of actions which are within the jurisdiction of the magistrates' courts. § 721. Parties; appearance in person or by attorney; other provisions (a) Parties in magistrates' courts may appear and act in person or by attorney. A corporation may appear and act only by an attorney at law. (b) Sections 121-130 of this title and Rules 17-25 of the Federal Rules of Civil Procedure apply to the magistrates' courts. 722. Particular actions; miscellaneous provisions (a) Part 2 of this title, relating to particular proceedings, applies to magistrates' courts only as specifically provided therein. (b) Sections 3-9 of this title apply to the magistrates' courts. Subchapter II-Commencement of Actions; Service of Process § 741. Commencement of action An action in a magistrate's court is commenced by filing a complaint. § 742. Time for issuance of summons The court shall indorse on the complaint the date upon which it was fied, and at any time within one year thereafter the plaintiff may have summons issued. § 743. Waiver of summons At any time after the complaint is filed, the defendant may, in writing, or by appearing and pleading, waive the issuing of summons. 8 744. Form of summons The summons shall be directed to the defendant, signed by the magistrate, and shall contain: (1) the title of the court, name of the subdivision in which the action is brought, and the names of the parties thereto; (2) a direction that the defendant appear and answer before the magistrate, as specified in section 745 of this title; (3) a notice that unless the defendant so appears and answers, the plaintiff will take judgment for any money or damages demanded in the complaint, as arising upon contract, or will apply to the court for the relief demanded in the complaint; and (4) the name of plaintiff's attorney, if he appears by attorney. § 745. Time for appearance of defendant The time specified in the summons for the appearance of the defendant shall be as follows: (1) if an order of arrest is indorsed upon the summons, forthwith; (2) in all other cases, within 5 days, if the summons is served in the subdivision in which the action is brought; within 10 days, if served in another subdivision. § 746. Alias summons (a) If the summons is returned without being served upon any or all of the defendants, or if it has been lost, the magistrate, upon the demand of the plaintiff, may issue an alias summons, in the same form as the original, except that he may fix the time for the appearance of the defendant at a period not to exceed 90 days from its date. (b) The magistrate may, within a year from the date of the filing of the complaint, issue as many alias summonses as may be demanded by the plaintiff. § 747. Service of summons (a) The summons may be served by the constable of any magistrate's court or by any other person of the age of 18 years or over not a party to the action. (b) Sections 161-170 and 713 of this title and subdivisions (d), (e), (g), and (h) of Rule 4 of the Federal Rules of Civil Procedure apply to the service and return of summons of the magistrates' courts. Subchapter III-Pleadings 8 771. Form of pleadings Pleadings in magistrates' courts: (1) are not required to be in any particular form, but shall be such as to enable a person of common understanding to know what is intended; (2) may, except the complaint, be oral or in writing; (3) need not be verified, unless otherwise provided in this chapter: (4) if in writing, shall be filed with the magistrate; and § 772. Pleadings allowed; motions (a) The pleadings are: (1) the complaint by the plaintiff; and (2) the answer by the defendant. (b) Demurrers to the complaint or to the answer may not be used. In lieu thereof, the defendant may make a motion to dismiss the complaint or the plaintiff may make a motion to strike the answer. § 773. Complaint The complaint in magistrates' courts is a concise statement, in writing, of the facts constituting the plaintiff's cause of action; or a copy of the account, note, bill, bond, or instrument upon which the action is based. § 774. Motion to dismiss complaint (a) At any time before answering, the defendant may make a motion to dismiss the complaint, asserting any of the following defenses or objections which appear upon the face of the complaint: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join an indispensable party; or (8) that the complaint is so vague or ambiguous that the defendant cannot reasonably be required to frame an answer. (b) The motion to dismiss shall distinctly specify the grounds upon which any of the defenses or objections to the complaint are taken. The defenses or objections may be taken to the whole complaint or to any claim for relief stated therein. (c) Any defense or objection to the complaint which may be made by motion to dismiss, other than that it is so vague and ambiguous that the defendant cannot reasonably be required to frame an answer, may be made either by motion to dismiss or in the answer, at the option of the defendant. § 775. Answer; counterclaims (a) 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 plain and direct manner, of any other facts constituting a defense or a counterclaim upon which an action might be brought by the defendant against the plaintiff, or his assignor, in a magistrate's court. (b) Section 202 of this title, relating to counterclaims in case of death or assignment, applies to the magistrates' courts. § 776. Failure to set up counterclaim If the defendant omits to set up, as a counterclaim, a claim which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim, and does not require for its adjudication the presence of third parties of whom the court can not acquire jurisdiction, and upon which an action might have been brought in the magistrate's court by the defendant against the plaintiff or his assignor, neither the defendant nor his assignee may afterwards maintain an action against the plaintiff therefor. § 777. Motion to strike answer; objections and defenses to an swer (a) When the answer contains new matter in avoidance, or constituting a defense or a counterclaim, the plaintiff may, at any time before the trial, make a motion to strike the answer for insufficiency, stating therein the grounds of the motion. (b) Whether or not the plaintiff makes a motion to strike the answer, the averments in the answer shall be taken as denied or avoided, and the plaintiff may assert at the trial any objection or defense in law or in fact to the answer. 8778. Proceedings on motions The proceedings on motions are as follows: (1) if the motion to dismiss the complaint is granted, the plaintiff may amend his complaint within such time, not exceeding two days, as the court allows; (2) if the motion to dismiss the complaint is denied, the defendant may answer forthwith; (3) if the motion to strike the answer is granted, the defendant may amend his answer within such time, not exceeding two days, as the court allows; and (4) if the motion to strike the answer is denied, the action shall proceed as if no motion had been interposed. § 779. Amendment of pleadings (a) At any time before the conclusion of the trial, either party may amend any pleading. If the amendment is made after the issue, and it appears to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of the amendment, the adjournment shall be granted. When an adjournment is granted, the court may also require the payment of costs to the adverse party as a condition to the allowance of the amendment made after issue is joined. (b) When a pleading is amended, the adverse party may answer or make a motion with respect to it within such time as the court allows, not exceeding five days after notice of the amendment. § 780. Admission of genuineness of documents contained in pleadings If the complaint or answer contains a copy or consists of the original of the written obligation upon which the action is brought or the defense founded, the genuineness and due execution of the instrument are deemed admitted, unless the answer denying the same is verified, or unless the plaintiff, within two days after the service on him of the answer, files with the magistrate an affidavit denying the same, and serves a copy thereof on the defendant. § 781. Order for inspection of account or document When the cause of action or counterclaim arises upon an account or instrument for the payment of money only, the court, at any time before the trial, may order the original to be exhibited to the inspection of, and a copy to be furnished to, the adverse party, at such time as may be fixed in the order. If the order is not obeyed, the account or instrument may not be given in evidence. § 782. Signing and verification of pleadings Rule 11 of the Federal Rules of Civil Procedure applies to the signing and verification of written pleadings in the magistrates' courts. § 801. Subchapter IV-Provisional Remedies Article A-Civil Arrest and Bail Order of arrest; grounds for arrest (a) A person may not be arrested in a civil action in a magistrate's court, except as prescribed in this Code. (b) An order to arrest the defendant may be indorsed by the magistrate on a summons and the defendant may be arrested thereon by the constable at the time of serving the summons, and brought before the magistrate, and there detained until duly discharged: (1) in an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the Canal Zone with intent to defraud his creditors; (2) in an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by one who received it in a fiduciary capacity; (3) when the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or (4) when the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditors. § 802. Affidavit and undertaking for order of arrest (a) Before an order for an arrest is made, the party applying shall prove to the satisfaction of the magistrate by the affidavit of himself, or another person, the facts upon which the application is founded. (b) The plaintiff shall also execute and deliver to the magistrate a written undertaking in the sum of $300, with sufficient sureties, to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the arrest is wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking. § 803. Arrested defendant taken before magistrate; bail (a) The defendant, immediately upon being arrested, shall be taken before the magistrate who made the order. If the magistrate is absent or unable to try the action or disqualified, the officer shall immediately take the defendant before the magistrate of another subdivision, who shall take jurisdiction of the action and proceed thereon, as if the summons had been issued and the order of arrest made by him. (b) The defendant shall be discharged from arrest upon giving bail in, or upon depositing, an amount fixed by the magistrate, and sections 248-265 of this title apply. § 804. Notice of arrest to plaintiff The officer making the arrest shall immediately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. § 805. Custody of defendant The officer making the arrest shall keep the defendant in custody until he is discharged by law. Article B-Claim and Delivery of Personal Property § 821. Procedure for claim and delivery In an action to recover possession of personal property, the plaintiff may, at the time of issuing summons or at any time thereafter before answer, claim the delivery of the property to him. Sections 292–304 of this title apply to the claim when made in magistrates' courts. Article C-Attachment § 831. Actions in which attachment authorized; affidavit A writ to attach the property of the defendant shall be issued by the magistrate at the time of or after issuing summons in actions in which the sum claimed exclusive of interest exceeds $25, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts as are required to be shown by the affidavit specified in section 342 of this title. § 832. Undertaking on attachment; exceptions to sureties Before issuing the writ, the magistrate shall require a written undertaking on the part of the plaintiff, with two or more sufficient sureties, in a sum not less than $50 nor more than $300, to the effect that if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. At any time after the issuing of the attachment, but not later than five days after the notice of its levy, the defendant may except to the 88558 - 62 - 23 |