637 thle 37 prosecute as a poor person; and he shall thereafter be deprived of all From Id., § 5. § 463. When defendant may petition to defend as a poor person. New. § 464. Contents of petition. The petition must contain the same matters, respecting the ability of the petitioner, required to be contained in a petition for leave to prosecute as a poor person; and it must be supported by a similar certificate, relating to the defence. New. § 465. Proceedings thereon. The provisions of this article, relating to the order, to be made upon an application for leave to prosecute as a poor person, and the proceedings subsequent thereto, apply to the order and subsequent proceedings, upon an application for leave to defend as a poor person. New. § 466. Appeal when party prosecutes or defends as a poor person. An order, made as prescribed in this article, does not authorize the petitioner to take or maintain an appeal, as a poor person; but where an appeal is taken by the adverse party, the order is applicable, in favor of the petitioner, as respondent in the appeal. New. § 467. Costs in favor of petitioner. Where costs are awarded in favor of a person, who had been admitted to prosecute or defend as a poor person, as prescribed in this article, they must be paid over to his attorney, when collected from the adverse party, and distributed among the attorney and counsel assigned to the poor person, as the court directs. New. 120 (198 ARTICLE FOURTH. Infant plaintiffs and defendants. Sec. 468. Right of infant to bring action. 469. Guardian for infant plaintiff must be appointed. 470. Application therefor. 471. Application for appointment of guardian for infant defendant. 473. Guardian for absent infant defendant. 474. Guardian not to receive property until security given. 475. Security. 476. Last two sections not to apply to general guardian. 477. Liability of defendant's guardian for costs. 477a. Appointment of guardians ad litem and special guardians by supreme § 468. Right of infant to bring action. Where an infant has a right of action, he is entitled to maintain an action thereon; and the same shall not be deferred or delayed, (201) on account of his infancy. From 2 R. S. 446 (Part 3, c. 8, tit. 2), § 1. § 469. (Am'd, 1891.] Guardian for infant plaintiff must be appointed. Before a summons is issued, in the name of an infant plaintiff, a competent and responsible person must be appointed, to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof, except where such infant prosecutes as a poor person as provided for under section 459 of this act, in which case security for costs shall not be required. From Id., § 2; Co. Proc., § 115. Am'd by L. 1891, c. 170, § 3. § 470. Application therefor. The guardian must be appointed upon the application of the infant, if he is of the age of fourteen years, or upwards; or, if he is under that age, upon the application of his general or testamentary guardian, if he has one, or of a relative or friend. If the application is made by a relative or friend, notice thereof must be given to his general or testamentary guardian, if he has one; or, if he has none, to the person with whom the infant resides. From Co. Proc., § 116, subd. 1. § 471. [Am'd, 1879.] Application for appointment of guardian for infant defendant. An infant defendant must also appear by guardian, who must be a competent and responsible person, appointed upon the application of the infant, if he is of the age of fourteen years, or upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in section 441 of this act; or if he is under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant. Where the application is made by a person other than the infant, notice thereof must be given to his general or testamentary guardian, if he has one within the State; or, if he has none, to the infant himself, if he is of the age of fourteen years, or upwards, and within the State; or, if he is under that age, and within the State, to the person with whom he resides. From Id., § 116, subd. 2. Am'd by L. 1879, c. 542. 12051 (263 (202) § 472. [Am'd, 1879.] Guardian, how appointed. when to act. Clerk, The court in which the action is brought, or a judge thereof, or if the action is brought in the supreme court, the county judge of the county where the action is triable, may appoint a guardian ad litem for an infant, either plaintiff or defendant, as prescribed in this article. The clerk must act in that capacity fɔr an infant defendant where the court or the judge appoints him. No person, other than the clerk, shall be appointed a guardian ad litem, unless his written consent, duly acknowledged, is produced to the court or judge making the appointment. From Co. Proc., § 115: 2 R. S. 446 (Part 3, c. 8, tit. 2), § 4. Am'd by L. 1879, c. 542. § 473. [Am'd, 1877, 1889.] fendant. Guardian for absent infant de Where an infant defendant resides out of the State or resides within the State, and is temporarily absent therefrom, the court may, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, procures such a guardian to be appointed, as prescribed in the last two sections, within a specified time after service of a copy of the order. The court must give special directions in the order, respecting the service thereof, which may be upon the infant. The summons may be served by delivering a copy to the guardian so appointed, with like effect as where a summons is served without the State upon an adult defendant, pursuant to an order for that purpose, granted as prescribed in section 438 of this act; except that the time to appear or answer is twenty days after the service of the summons, exclusive of the day of service. From Co. Proc., § 116. Am'd by L. 1877. c. 416; L. 1889, c. 494. § 474. Guardian not to receive property until security given. Except in a case where it is otherwise specially prescribed by law, a guardian, appointed for an infant, as prescribed in this article, shall not be permitted to receive money or property of the infant, other than costs and expenses allowed to the guardian by the court, until he has given sufficient security, approved by a judge of the court, or a county judge, to account for and apply the same, under the direction of the court. From Co. Proc., § 420. § 475. Security. The security must be a bond to the infant, in such penalty as the judge directs, not less than twice the sum, or the value of the property, to be received, executed by the guardian and at least two sureties, approved by the judge, and filed in the office of the clerk. The infant, or any other party to the action, may afterwards apply for an order, directing a new bond to be given, with an increased penalty; or the court may so direct, of its own motion. From 2 R. S. 446 (Part 3. c. 8, tit. 2), § 5. § 476. Last two sections not to apply to general guardian. The last two sections do not apply to the general guardian of the infant, who has been appointed his guardian ad litem, as prescribed in this article; but the court may, at any time, require the general guardian to give additional security for the faithful discharge of his trust, before receiving money or property of the infant, under a judgment or order in the action. See Rule 54 of General Rules of Practice. § 477. Liability of defendant's guardian for costs. A person appointed guardian, as prescribed in this article, for an infant defendant in an action, is not liable for the costs of the action, unless specially charged therewith by the order of the court, for per- (c) sonal From 2 R. S. 447 (Part 3, c. 8, tit. 2), § 12. § 477a. [Added, 1916.] Appointment of guardians ad litem and special guardians by supreme court without application. The supreme court may appoint a guardian ad litem or special guardian for an infant or an incompetent person, at any stage in any action or proceeding, when it appears to the court necessary for the proper protection of the rights and interest of such infant or incompetent person and fix the fees and compensation of such guardians, except when it is otherwise expressly provided by law. Added by L. 1916, c. 440 (in effect Sept. 1, 1916). 123 (203) (207) CHAPTER VI. Pleadings in Courts of Record, including Counterclaims. TITLE I. The Consecutive Pleadings in an Action. The consecutive pleadings in an action. Dec. 478. First pleading to be complaint. 479. Copy complaint, when to be served. 480. Consequence of failure. 481. Complaint; what to contain. 482. When interlocutory and final judgment may be demanded. 483. Causes of action to be separately stated. 484. What causes of action may be joined in the same complaint. 485, 486. [Stricken out.] | 478. First pleading to be complaint. The first pleading, on the part of the plaintiff, is the complaint. ¡ 479. [Am'd, 1877.] Copy complaint, when to be served. If a copy of the complaint is not delivered to a defendant, at the time of the delivery of a copy of the summons to him, either within or without the State, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But where the same attorney appears for two or more defendants, only one copy of the complaint need be served pon him; and if, after service of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint within twenty days after he appears in the action. From Co. Proc., § 130. Am'd by L. 1877, c. 416. 480. Consequence of failure. If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint. Now. § 481. [Am'd, 1904, 1905.] Complaint; what to contain, The complaint must contain: 1. The title of the action, specifying the name of the court in which it is brought; if it is brought in the supreme court, the name of the county, which the plaintiff designates as the place of trial; and the names of all the parties to the action, plaintiff and defendant. |