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448. Personal service on nonresident. When the place of residence is known and the same is made to appear by affidavit, in lieu of publication in a newspaper it will be sufficient to mail a copy of the summons, notice or other process, accompanied by a statement as to the nature of the action or proceeding, to the sheriff or other process officer of the county and state where the defendant resides, who shall serve same according to its tenor. The process officer who serves the papers shall, in making his return, use a form of certificate substantially as follows:

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county, in the state of .. ......, which court is a court of record having a seal, which is hereto attached, do certify that to me well known as the sheriff of said county of ..... who being by me duly sworn, says that as such sheriff he has full power to serve any and all legal processes issuing from the courts of said state, and that on the ....day of ...., 190.., he served the summons hereto attached by reading and delivering a copy of same to the defendant therein. named.

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449. Defense after judgment on substituted service. The defendant against whom publication is ordered, or who is served under the provisions of the preceding section, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within five years after its rendition, on such terms as may be just; and if the defense be successful and the judg ment or any part thereof shall have been collected or otherwise enforced, such restitution may thereupon be compelled as the court may direct; but title to property sold under such judgment to a purchaser in good faith shall not be thereby affected.

Code, s. 220; C. C. P., s. 85.

Note. Summoned after judgment, see s. 456.

IX. PROSECUTION BONDS.

450. Plaintiff's, for costs. Before issuing the summons the clerk shall require of the plaintiff either to give an undertaking with sufficient surety in the sum of two hundred dollars, with the condition that the same shall be void if the plaintiff shall pay the defendant all such costs as the defendant shall recover of him in the action; or to deposit a like sum with him as a security to the defendant for such costs, and in case of such deposit, he shall give to the plaintiff and to the defendant a certificate to that effect; or to file with him a written authority from some judge or clerk of a superior court, authorizing the plaintiff to sue as a pauper.

Code, s. 209; R. C., c. 31, s. 40; C. C. P., s. 71.

Note. For bond in surety company, see chapter Bonds, s. 272, et seq.
For mortgage in lieu of bond, see chapter Bonds, ss. 265-270.

451. Suit as a pauper. Any judge or clerk of the superior court may authorize any person to sue as a pauper in their respective courts when he shall prove, by one or more witnesses, that he has a good cause of action, and shall make affidavit that he is unable to comply with the last section.

Code, s. 210; C. C. P., s. 72; 1868-9, c. 96.

Note.

For effect on costs, see chapter Costs, s. 1265.

452. Court may assign counsel. The court to which such summons is made returnable may, at its discretion, assign to the person suing as a pauper learned counsel, who shall prosecute his action. Code, s. 211; 1868-9, c. 96, s. 2.

453. Defendant's, for costs and damages in actions for land. In all actions for the recovery of real property or for the possession thereof, the defendant, before he is permitted to plead, answer or demur, shall execute and file in the office of the clerk of the superior court of the county wherein the suit is pending an undertaking with good and sufficient surety, in an amount to be fixed by the court, not less than two hundred dollars, to be void upon condition that the defendant pay to the plaintiff all such costs and damages as the plaintiff may recover in the action, including damages for the loss of rents and profits.

Code, s. 237; 1869-70, c. 193.

454. Defense without bond, when. The undertaking prescribed in the preceding section shall not be required if an attorney practicing in the court wherein the action is pending will certify to the court in writing that he has examined the case of the defendant and is of the opinion that the plaintiff is not entitled to recover; and

if the defendant will also file an affidavit stating that he is not worth the amount of said undertaking in any property whatsoever, and is unable to give the same.

Code, s. 237; 1869-70, c. 193.

X. JOINT AND SEVERAL DEBTORS.

455. When some only of defendants are served; partners. Where the action is against two or more defendants, and the summons is served on one or more of them, but not on all of them, the plaintiff may proceed as follows:

1. If the action be against defendants jointly indebted upon contract, he may proceed against the defendants served, unless the court otherwise directs, and if he recover judgment it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants served; or,

2. If the action be against defendants severally liable, he may proceed against the defendants served, in the same manner as if they were the only defendants.

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants if the action had been against them or any of them alone.

4. If the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omission. shall not have been pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action.

Code, s. 222; C. C. P., s. 87.
Note. See ante ss. 411-414.

456. Summoned after judgment, when. When a judgment shall be recovered against one or more of several persons jointly indebted upon a contract by proceeding, as provided in the preceding section, those who were not originally summoned to answer the complaint may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.

Code, s. 223; C. C. P., ss. 87, 318.

457. Defense by party summoned after judgment. Any party so summoned may answer within the time specified denying the judgment, or setting up any defense thereto which may have arisen subsequently to such judgment; and may make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced and such defense had been then interposed to such action.

Code, s. 224; C. C. P., s. 322.

Note. See s. 449.

458. Pleadings and proceedings same as in action. The party issuing the summons may demur or reply to the answer, and the party summoned may demur to the reply; and the issues may be tried and judgment may be given in the same manner as in an action and enforced by execution if necessary.

Code, s. 225; C. C. P., s. 323.

459. Pleadings verified as in actions. The answer and reply shall be verified in the like cases and manner and be subject to the same rules as the answer and reply in an action.

Code, s. 226; C. C. P., s. 324.

XI. LIS PENDENS.

460. Notice of, filed in county where land lies. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint or at any time afterwards or whenever a warrant of attachment shall be issued, or at any time afterwards, the plaintiff or a defendant when he sets up an affirmative cause of action in his answer and demands substantive relief at the time of filing his answer or at any time afterwards, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment and must contain the date of the mortgage, the parties thereto, and the time and place of registering the same. Code, s. 229; C. C. P., s. 90.

461. Notice ineffectual unless action is prosecuted. The notice of lis pendens shall be of no avail unless it shall be followed by the first publication of notice of the summons or by an order therefor, or by the personal service on the defendant within sixty days after such filing.

Code, s. 229; C. C. P., s. 90.

462. Effect of, on subsequent purchasers. From the filing of the notice of lis pendens only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby; and every person whose conveyance or incumbrance is subsequently executed or subsequently registered, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the action. For the purposes of this section an action shall be deemed to be pending from the time of filing such notice.

Code, s. 229; C. C. P., s. 90.

463. Notice cancelled, when and how. The court in which the said action was commenced may, in its discretion, at any time after the action shall be settled, discontinued or abated, on application of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the court, order the notice authorized by this subchapter to be cancelled of record, by the clerk of any county in whose office the same may have been filed or recorded; and such cancellation shall be made by an endorsement to that effect on the margin of the record, which shall refer to the order.

Code, s. 229; C. C. P., s. 90.

464. Lis pendens in Buncombe. Any party to an action desiring to claim the benefit of a notice of lis pendens in Buncombe county, whether given formally under this section or in the pleadings filed in the case, shall cause such notice to be cross-indexed by the clerk of the superior court in a docket to be kept by him, to be called "Record of Lis Pendens," which index shall contain the names of the parties to the action, where such notice, whether formal or in the pleadings is filed, the object of the action, the date of indexing and a sufficient description of the land to be affected to enable any person to locate said lands. From the time of cross-indexing only shall the pendency of the action be actual or constructive notice to subsequent purchasers or incumbrancers. The word "filing" in the preceding sections of this subchapter when referring to actions or proceedings in Buncombe county shall read "cross-indexing." The clerk shall be entitled to a fee of twenty-five cents for indexing said notice, to be paid as are other costs in the pending action.

1903, c. 472.

XII. COMPLAINT.

465. The first pleading. The first pleading on the part of the plaintiff is the complaint.

Code, s. 232; C. C. P., s. 92.

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