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ACTION OR SUIT

When a party is sued by a wrong name, and service of the writs is actually made
on the person intended, and he does not appear and plead in abatement, the judgm
ent rendered in such a case is not void;but where a suit is against a nonresiden
t, where the only notice is by publication, and no appearance is made, and a wro
ng name is used in the order of publication, the rule is otherwise. Skelton v.
Sackett(Mo.) 8 west/ 725

ALTHOUGH IT HAS BEEN HELD THAT THE MIDDLE NAME OF A PERSON IS NO PART OF HIS NAM
E,YET THE RULE DOES NOT EXTEND TO THE CHRISTIAN NAME OF A PERSON; AND NO PRESUMP
TION OF LAW IS INDULGED THAT AN INITIAL LETTER STANDS FOR A PARTICULAR NAME COMM
ENCING WITH SUCH LETTER. SKELTON V. SACKETT (MO.) 8 WEST. 725
THE NECESSITY OF A LEGAL RIGHT, ACCEPTED AS A GENERAL RULE OF THE COMMON LAW, AU
THORITIES AND REQUIRES THE INVENTION AND USE OF CONVENIENT PROCEDURE FOR ASCERTI
NG AND ESTABLISHING THE RIGHT AND OBTAINING THE REMEDY. BROOKS V. HOWISON (N.H.
) 1 N.E.243.
FOR EVERY RIGHT THERE IS A REMEDY. THE DISTINCTIONS BETWEEN REAL, PERSONAL AND M
IXED ACTIONS ARE ABOLISHED; AND IT IS OPTIONAL TO RESORT TO A COURT OF LAW OR A
COURT OF EQUITY TO ENFORCE AN EQUITABLE CAUSE OF ACTION. AUSTELL V. SWANN, 74 GA
. 278; GILLETT V. WALTER, ID, 291.
WHERE THE LAW CREATES A RIGHT, BUT PRESCRIBES NO REMEDY, ANY COMMON-LAW ACTION M
AY BE RESORTED TO, ADAPTED TO THE CASE. CUMMINGS V. WINN (MO.) 4 WEST. 653.
AND EQUITABLE CAUSE OF ACTION AND A LEGAL, MAY BE JOINED, IF STATED SEPARATELY.
BLAIR V. CHICAGO & A.R.R. CO. (MO.) 5 WEST.
WHEREVER, BY EITHER THE COMMON LAW OR A STATUTE OF THE STATE, A RIGHT OF ACTION
HAS BEEN FIXED, AND A LEGAL LIABILITY INCURRED, THAT LIABILITY MAY BE ENFORCED,
AND A RIGHT OF ACTION PURSUED,IN ANY COURT WHICH HAS JURISDICTION OF SUCH MATTER
S AND CAN OBTAIN JURISDICITION OF THE PARTIES. AUTHORITIES CITED. ST. JOSEPH F.
& M. INS. CO. V. LELAND(MO.) 7 WEST. 317.
A DEBT UPON A CONTINUOUS ACCOUNT OF BOOK ENTRIES, MADE IN THE ORDINARY COURSE OF
DEALING, IS ENTIRE. BUCK V. WILSON (Pa.) 4 Cent. 643
if parties contract that a debt shall fall due and be payable in installments, t
hey have severed it; but when the consideration is fully executed, and there is
no stipulation of severance, the obligation to pay is ordinarily indivisible and
entire. Authorities cited. Buck v. Wilson (Pa.) 4 Cent. 646.

An action for special damages to survive to the personal representative must aff
ect the estate, not the person. Authorities cited. Boor v. Lowery (Ind.) 1 Wes

t. 551.

It is now the general American doctrine that all causes of action arising from t
ors survive and go to the executor or administrator as assets. Authorities cite
d. Snyder v. Wabash etc. R.R.Co. (Mo.) 2 West. 108;Boor v. Lowery(Ind.) 1 West.
550.
All causes of action founded upon contract, debt or other duty survive against t
he personal representative of the person chargeable therewith. Miller v. Leach,
95 N.C. 229.
IV. ABATEMENT.
a. By Death.
1. In a suit against partners for an injury to the person, death of one partner
will not ispo facto abate the action. Elliott and Zollars, JJ.,dissent. Boor v
. Lowery (Ind.) 1 West. 548.
Right to revive an action; Code Civ. Proc. sec. 757;the motion may be made by th
e personal representatives of a deceased defendant. Pierson v. Morgan, 44 Hun, 5
17.

By Absense of Authority; Pendency of Other Actions.


1. Suit commenced without authority is properly dismissed. Authorities cited. Ka
nkakee v. Kankakee etc. R.R. Co. (Ill.) 1 West. 614.
2. A motion to dismiss for want of authority in the attorney should be made at t
he first opportunity; the objections cannot be raised by demurrer or answer. Mix
v. People(Ill.) 2 West. 891; Followed in Warren v.Cook(Ill.) Id, 853.
Mere Knowledge of the pendency of a suit in the courts of another state, without
service of process, or an apperance, is not sufficient of itself to compromise
the rights of a party in this State. Authorities cited. Cross v. Armstrong(Ohio
) 7 West. 776.

ACTIONS OR SUIT,
IT is the general rule that every inhabitant of this state must be sued in the c
ounty of his domicil. Thomson v. Locke, 66 Tex. 383.

VENUE; CHANGE OF.


wHERE THE RESIDENCE OF DEFENDANT IS NOT SET OUT IN THE COMPLAINT, OBJECTION THAT
HE IS SUED OUT OF THE COUNTY OF HIS RESIDENCE MUST BE TAKEN BY PLEA, NOT ON MOT
ION TO DISMISS. DAY V. hENRY (Ind.) 2 West. 272

2. A complaint to compel the application of notes secured by mortgage upon real


estate to the discharge of a judgment for alimony is not a local action necessar
ily brought within the county wher the mortgaged land is situated. Becknell v. B
ecknesll (Ind.) 7 West. 922.
An application for a change of venue, on the ground of prejudice of the judge, m
ust be made before the trial has begun. Allis v. Meadow Spring Distilling Co. 67
Wis. 16.
when the statute requires a notice of motion to be given, it must be complied wi
th.
Johnson v. Moffett (Mo.App.) 1 West. 329.
On application for a change of venue, on the ground of undue influence over the
inhabitants of the county, if the petition is sufficient in form and subtance, t
he statute is peremptory, and the change of venue shoudl be awarded. No notice i
s necessary.
Dowling v. Allen (Mo.) 5 West.370.
3.Where a motion was based on an affidavit showing that the attorneys
aintiff had an influence over the inhabitants of the county, but some
orneys for the plaintiff withdrew from the case before the motion was
held, that the motion was properly overruled. Anderon v. Leverich, 70

for the pl
of the att
ruled on,
Iowa, 741.

When the change is made on account of the prejudice of the judge, and is sent to
another court of the same county, it is as much a change of the place of trial,
within the meaning of the statute, as when it is sent to another county on acco
unt of the prejudice of the inhabitants; and when a change of either kind has be
en had, a second change cannot be had forn any cause which was in existence whe
n the first change ws obtained. Weare v. Williams, 69 Iowa, 252.
If, upon an application in a county court for a change of the place of trial bec
ause of the prejudice of the judge, the affidavit alleges also the prejudice of
the circuit judge for that county, such prejudice thereby sufficiently appears,
within the meaning of Rev.Stat.sec. 2467,and the cause should not be sent to the
circuit court for that county.
Notrhwestern Iron Co. v. Crane, 66 Wis. 567.
4.Upon application of either party, upon affidavit showing
uses mentioned in Rev.Stat.sec. 412, the court in term, or
, has no discretion, but must grant the change of venue or
Authorities cited. Center Township v. Marion Co. (Ind.) 7

one or more of the ca


the judge in vacation
the change of judge.
West. 580.

5.Objection to an order for change of venue should be made in the court granting
it,not in the court to which the cause is removed. Squires v. Chillicothe (Mo.)
5 West. 366.

In an action on a sheriff's bond, after a change of venue from another county th


e court has no power to allow the sheriff to amend his return to the attachment
suit, which was not removed by the change of venue. State v. Reyburn (Mo.App.)
4 West. 818.

Notice of a motion for leave to amend a pleading, and a written offer of judgeme
nt, in the court to which the cause was sent, amount ot a submission to the juri
sdiction of that court. Id.
Venue; place of trial of an action to set aside as fruadulent a general assignme
nt covering real estate; the right to demand a change of venue cannot be defeate
d by an offer by the plaintiff to stipulate not to attempt to reach the real est
ate. Wyatt v. Brooks, 42 Hun, 502.
Code Civ.Proc. sec 982, does not include an action to compel an assignment of a
mortgage. Yates Co. Nat. Bank v. Blake, 43 Hun, 162.

An application for change of venue, presented after time allowed by rule of cour
t, should show diligence. Ringensberger v. Hartman (Ind.) 3 West. 363.

An application must be made at the earliest moment. Roberts v. People, 9 Colo. 4


58.

VI. APPEARANCE
a. What amounts to;Without Authority; Non-appearance.
1. Appearance for purpose of objection to jurisdiction has not effect of general
appearance; otherwise if motion also ask dismissal on ground of subject matter.
Elliott v. Lawhead (Ohio) 1 West. 162.
2. Appearance by attorney without authority will not bind the pary. Anderson v.
hawhe (Ill.) 1 West. 626.
3. Entry of appearance by attorney raises presumption of authority, Dey v. Hatha
way Printing etc. Co. (N.J.) 3 Cent. 495.
There is no better excuse for the non-appearance of a party at the proper time t
han that he had never received actual notice of the pendency of the action. Neit
ert v. Trentman (Ind,) 2 West. 645.
b. Effect
1. Jurisdiction cannot be conferred upon the court by the consent of the parties

. Avery v. Woodin, 44 Hun, 266.


2. Voluntary appearance without questioning is a waiver of want of jurisdiction
of person.
Wabash etc. R.R. Co. v. Lash (Ind) 1 West. 307;Glass v.Smith, 66 Tex. 548.
3. Voluntary appearance waives service of process. Miller v. Warden (Pa.) 1. Cen
t.873; King v. Penn (Ohio) 1 West. (Pa) McQuoid v. Lamb (Mo.) Id. 433; Followed
in Foster v. Wulfing (Mo.App.) 2 West. 432.
4. Appearance before an inferior tribunal, without objecting to want of notice,
confers jurisdiction over the person. Washingtion Ice Co. v. Lay (Ind.) 1 West.
121; Followed in Reynolds v. Shults (Ind.) 3 West. 655; Pickering v. State(Ind.
) Id. 716; Barbour v. Newkirk, 83 Ky. 529.
5. A special appearance and motion to dismiss proceedings for want of notice is
not a waiver of notice. Carr v. Boone (Ind.) 6 West.576.
6. Where it is desired to take advantage of any defect in the service of process
, a special appearance should be entered for that purpose. Penniman v. Daniel, 9
5 N.C. 341.
7. Apperance in a suit on a judgment,and rendered without personal service of th
e invalidity of the judgment is not a waiver of the right to bring a writ of err
or to review the same. Eliot v. McCormick (Mass.) 3 N.E. 871.
11. Where defendant's appearance and papers were withdrawn with leave of court,
and there was no further appearance, all further proceedings against defendant,
without proof having been made of the issue and service of process, are erroneou
s. McArthur v. Leffler (Ind.) 7 West. 521.
12. When a defendant is brought before a justice by a civil warrant, he does not
appear voluntarily; and courts have always held that where timely objections we
re made to the jurisdiction thus sought to be acquired over his person, he did n
ot waive them by pleading to the merits, or in going to trial upon the issue so
framed. Authorities cited. Dailey v. Kennedy(Mich.) 7 West. 469.
13. By appearing and joining issue, and adjourning the cause from time to time w
ithout andy objection whatever, defendant submits to the jurisdiction and waives
all right to set aside a defective writ. Authorities cited. Id.

AFFIDAVITS
An affidavit of defense, made and filed by one styling himself "attorney" for th
e defendant, and alleging that he transacted all the business in the case, and h
as full knowledge. etc.. will not be received. Griel v. Buckius (Pa.) 4 Cent. 50
7.
2. Affidavits of defense are sufficient if they exhibit the elements of a substa
ntial defense, although not drawn with accuracy. Gunnis v. Weigley(Pa.) 5 Cent.
729.
3.The affidavit need not develop a valid prima facie defense, nor need it state
the manner in which the facts would be proved. Authorities cited. Noble v. Kreuz
kamp(Pa.)1 Cent. 872.
4. Affidavit in an action on a contract, alleging that the contract was tainted

with fraud, but containing nothing above hearsay, will not prevent a recovery. C
lay Commercial Telephone Co. v. Root (Pa) 2 Cent. 340.
An indefinite statement of the results of facts which cannot be proved in the te
rms in which they are alleged(as a general statement of fraud or overcharges in
sale) is insufficient. Newell v. Richardson(Pa.) 6 Cent.166.
5. Where the defense set up in an action of assumpsit by the affidavit is paymen
t, pure and simple, it must be stated with particularity, as to time, amount, an
d manner of payment, and also the person or persons to or by whom the same was m
ade. Authorities cited. McCracken v. First Ref. Presby. Church (Pa.) 1 Cent. 854
.

What is ASSUMPSIT?
Lat He undertook; he promised. A promise or engagement by which one person assum
es or undertakes to do some act or pay something to another. It may be either or
al or in writing, but is not under seal. It is express if the promisor puts his
engagement in distinct and definite language; it is implied where the law infers
a promise (though no formal one has passed) from the conduct of the party or th
e circumstances of the case. In practice. A form of action which lies for the re
covery of damages for the non-performance of a parol or simple contract; or a co
ntract that is neither of record nor under seal. 7 Term, 351; Ballard v. Walker,
3 Johns. Cas. (N. Y.) 60. The ordinary division of this action is into (1) comm
on or indebitatus assumpsit, brought for the most part on an implied promise; an
d (2) special assumpsit, founded on an express promise. Steph. PI. 11, 13. The a
ction of assumpsit differs from trespass and trover, which are founded on a tort
, not upon a contract; from covenant and debt, which are appropriate where the g
round of recovery is a sealed instrument, or special obligation to pay a fixed s
um; and from replevin, which seeks the recovery of specific property, if attaina
ble, rather than of damages.
Law Dictionary: What is ASSUMPSIT? definition of ASSUMPSIT (Black's Law Dictiona
ry)
http://thelawdictionary.org/assumpsit/