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56-3-1 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Ancient Writs |
The right and benefit of all writs, remedial and judicial, given by any statute or act of parliament made in aid of the common law prior to the fourth year of t… |
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56-3-2 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Writs Abolished |
The writ of right, writ of entry, writ of formedon, writ de homine replegiando, writ of levari facias, writ of elegit, writ of distringas and writ of capias ad … |
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56-3-3 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Forms of Writs |
The supreme court of appeals may, from time to time, prescribe the forms of writs and other process, and until the court shall alter the forms, the same may be … |
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56-3-4 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Issuance of Process; Alteration |
The process to commence a suit shall be a writ commanding the officer to whom it is directed to summon the defendant to answer the bill or action. It shall be i… |
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56-3-5 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Process; Direction; When Returnable; Attachment; Summons for Witness |
Process from any court, whether original, mesne or final, may be directed to the sheriff of any county. Any process shall be returnable, within ninety days afte… |
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56-3-6 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Delivery of Process; Process Book |
The clerk of every court from whose office may be issued any process, original, mesne or final, or any order or decree to be served on any person, shall, unless… |
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56-3-7 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Officer’s Receipt of Process |
Every officer who attends a court shall, within five days after the end of any rules, go to the clerk’s office and receive all process, orders and decrees to be… |
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56-3-8 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Proof of Mailing Process to Officer |
Proof that any process or order was put into the post office in an envelope or cover properly addressed to any officer, and that the postage thereon was paid, s… |
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56-3-9 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Service in Other County; Return |
A sheriff or other officer may transmit by mail (the postage thereon being prepaid) any process or order which came to his hands from beyond his county, with hi… |
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56-3-10 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Mailing of Process |
If there come directed to a clerk, by mail, a letter with an indorsement on the envelope of the parties’ names, and the nature of the process enclosed, he shall… |
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56-3-11 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Service of Process in General; Execution of Process, Writ or Order When Sheriff is Disqualified |
Any process or notice may be executed on or before the return day thereof. If it appear to be duly served and good in other respects, it shall be deemed valid, … |
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56-3-12 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Service of Summons or Scire Facias; Judgment by Default |
Any summons or scire facias against any person, including a summons for a witness, may be served as a notice is served under section one, article two of this ch… |
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56-3-13 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Service of Process or Notice on Domestic Corporations |
Unless otherwise specially provided, process against, or notice to, a corporation created by virtue of the laws of this State may be served as follows:
(a) If… |
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56-3-14 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Service of Process or Notice on Foreign Corporations |
Process against, or notice to, a foreign corporation which has a usual place of business in this State, or, with or without such usual place of business, is doi… |
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56-3-15 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Service of Process or Notice on Common Carriers Other Than Corporations |
In a case against any common carrier, other than a corporation, for any liability as such, it shall be sufficient to serve any process against or notice to the … |
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56-3-16 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Execution of Process on Sunday |
No civil process or order shall be executed on Sunday, except in cases of persons escaping from custody, or where it may be specially provided by law. |
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56-3-17 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Where Process May be Executed |
Every officer by whom any process or order may be lawfully executed shall execute the same with in his bailiwick, or upon any river or creek ad joining thereto. |
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56-3-18 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Summoning Assistance |
Such officer may, in case resistance be made or apprehended to the execution of such process or order, summon to his assistance, either orally or by writing, so… |
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56-3-19 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Service and Return of Process; Failure to Make Proper Return; False Return; Penalty |
Every officer to whom any process or order is lawfully delivered for execution shall, without avoidable delay, execute the same according to the command thereof… |
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56-3-20 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Further Liability for Failure to Make Proper Return |
A judgment in a prosecution under the preceding section for failure to make proper return of any process or order, or to subscribe the return as aforesaid, shal… |
Unreviewed
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56-3-21 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Alias Process |
If, at the return day of any process, it be not returned executed, an alias or other proper process may be issued without waiting (where the first process is re… |
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56-3-22 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Judgment on Return Nihil |
No judgment shall be rendered on a scire facias, or in any other case, on returns of nihil. |
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56-3-23 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Service by Publication |
On affidavit that a defendant is a foreign corporation for which no statutory attorney in fact, officer, director or agent is found in this State upon whom serv… |
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56-3-24 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Contents of Order of Publication; Publishing |
Every order of publication shall give the style of the suit, state briefly its object, and require the defendants against whom it is entered, or the unknown par… |
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56-3-25 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Failure to Appear in Response to Publication; Trial or Hearing; Personal Service Outside State |
When such order shall have been so published, if the defendants against whom it is entered, or the unknown parties, shall not appear within the time specified i… |
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56-3-26 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Rehearing in Case of Non-Person Service |
Any unknown party or other defendant who was not served with process in this State, and did not appear in the case before the date of such judgment, decree or o… |
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56-3-27 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Order of Publication in Supreme Court of Appeals |
When, by the return of any officer of process issued to answer any appeal, writ of error or supersedeas pending in the supreme court of appeals of this State, o… |
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56-3-28 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Requisites of Publication in Such Court |
Such order of publication shall be entered by the clerk in a suitable book kept by him for the purpose and signed by him, and a certified copy of such order sha… |
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56-3-29 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Rehearing in Supreme Court |
Any unknown party or other defendant who was not served with process in this State, and did not appear in the cause, may have the same reheard and any injustice… |
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56-3-30 |
Ch. 56 — PLEADING AND PRACTICE |
Writs, Process and Order of Publication |
Day of Publication |
Any publication authorized or required by any law of this State, or by the provisions of any deed of trust, to be made not more than once a week in any newspape… |
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56-4-1 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Rule Days |
In the clerk’s office of every circuit court, rules shall be held on the first Monday of every month, whether the court be in session or not, except that when a… |
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56-4-2 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Rule Docket |
There shall be a docket of the cases at rules wherein the rules shall be entered; and the books in which rules and orders are entered in chancery cases shall be… |
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56-4-3 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Rule Entries |
Where rules are held on the last Monday in a month, as provided in section one of this article, they shall be entered in the rule docket and indorsed on the dec… |
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56-4-4 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Continuance at Rules in Absence of Clerk |
When there is no clerk to take a rule in a case, it shall stand continued until the next rule day after there is a clerk. |
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56-4-5 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
What Rules May Require |
The rules may be to declare, plead, reply, rejoin, or for other proceedings; they shall be given from month to month. |
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56-4-6 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Time for Appearance; Rule to File Declaration; Nonsuit for Non-Prosecution; Damages |
A defendant may appear at the rule day at which the process against him is returnable, or, if it be returnable in term, at the first rule day after the return d… |
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56-4-7 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Dismissal for Failure to File Declaration , or Bill |
If three rules elapse after the rules at which the process is returned executed as to any one or more of the defendants, without the declaration or bill being f… |
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56-4-8 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Return to Show Defendant’s Nonresidence; Abatement as to Nonresident Not on Served |
When a summons to a party to answer an action or bill is received by an officer who knows that such party is not a resident of his county, or not a resident of … |
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56-4-9 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Minors May Sue by Next Friend or Guardian; Substitution of Plaintiffs |
Any minor entitled to sue may do so by his next friend or guardian. When the action or suit is brought by his next friend, the court may, for good cause, substi… |
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56-4-10 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Guardian Ad Litem |
The proceedings in a suit wherein an infant or insane person is a party shall not be stayed because of such infancy or insanity, but the court in which the suit… |
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56-4-11 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Transfer of Cases From Law to Equity and Vice Versa |
No case shall be dismissed simply because it was brought on the wrong side of the court, but whenever it shall appear that a plaintiff has proceeded at law when… |
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56-4-12 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Abatement for Want of Form in Declaration |
No action shall abate for want of form, where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the case. |
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56-4-13 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Unnecessary Averments in Trespass on the Case |
In actions of trespass on the case, where the action of trespass would formerly have been proper, general averments that the defendant committed other wrongs, a… |
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56-4-14 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Allegations of Place Where Contract Was Made or Act Done |
It shall not be necessary in any declaration or other pleading to set forth the place in which any contract was made, or act done, unless when, from the nature … |
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56-4-15 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Averments as to Jurisdiction; Profert; Oyer |
It shall not be necessary in any action to aver that the cause of action arose, or that the matter is, within the jurisdiction of the court, or to make profert … |
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56-4-16 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Allegations Not Traversable Nor Requiring Proof |
All allegations which are not traversable, and which the party could not be required to prove, may be omitted, unless they are required for the right understand… |
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56-4-17 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Actions on Insurance Policies; Declaration |
A declaration or count on a policy of insurance, whether the policy be under seal or not, may be in effect as follows:
{{FIGURE type=form page=1368 id=56-4-17~… |
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56-4-18 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Filing Account in Assumpsit |
In every action of assumpsit the plaintiff shall file with his declaration an account stating distinctly the several items of his claim, unless it be plainly de… |
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56-4-19 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Statement of Particulars of Claim |
In any action or motion, if good cause therefor be shown or appear, the court or judge in vacation may order the plaintiff to file a more particular statement, … |
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56-4-20 |
Ch. 56 — PLEADING AND PRACTICE |
Rules and Pleading |
Statement of Particulars of Defense |
In like manner, if good cause therefor appear, and there be no unreasonable delay on the part of the plaintiff in applying for such order, the court or judge in… |
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