CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 2. NOTICES AND MOTIONS.
§56-2-1. Service of notices; personal service; substituted
A notice, no particular mode of serving which is prescribed,
may be served by delivering a copy thereof in writing to the party
in person; or if he (or she) be not found, by delivering such copy
at his (or her) usual place of abode, and giving information of its
purport, to his wife (or her husband), or to any other person found
there who is a member of his (or her) family and above the age of
sixteen years; or if neither his wife (or her husband) nor any such
other person be found there, and he (or she) be not found, by
leaving such copy posted at the front door of such place of abode.
Any sheriff or constable, thereto required, shall serve a notice
within his county and make return of the manner and time of
service; for a failure so to do he shall forfeit twenty dollars.
Such return, or a similar return by any other person who verified
it by affidavit, shall be evidence of the manner and time of
§56-2-2. Service by publication.
Any such notice to a person not residing in this state may be
served by the publication thereof as a Class III legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for such
publication shall be the county in which the suit or action is
§56-2-3. Notice to take depositions.
Notice to any party to take a deposition may be served on the
counsel of such party, or on any one of such counsel, if there be
more than one, and such service shall have like effect as if the
notice were served on the party, provided the time between the
service of notice and taking the deposition be sufficient for
conveying, by ordinary course of mail, a letter from the place of
service to the place of residence of the party, and a reply from
that place back to the place of service, and then for the counsel
to attend at the place of taking the deposition. In all cases when
notice is served on counsel as aforesaid, the court, upon exception
being taken, may determine whether, under all the circumstances,
the notice has been served in reasonable time, and admit or reject
the deposition accordingly.
§56-2-4. Motion on certain bonds.
In the case of any bond taken by an officer, or given by a
sheriff or constable, and returned to or filed in the office of the
clerk of the county court of the county, or any bond or
recognizance taken in a criminal case or proceeding, the circuit
court of the county, or the court in which any such bond or
recognizance is given, may, on motion of any person, or the state,
as the case may be, give judgment for so much money as he, or the
state, is entitled, by virtue of such bond, to recover by action.
§56-2-5. Notice of motion for judgment.
In any case wherein there may be judgment or decree for money
on motion, such motion shall be after ten days' notice, unless some
other time be specified in the section or statute authorizing such
§56-2-6. Motion for judgment on contracts; affidavit of claim;
plea and counter affidavit; judgment; discontinuance;
Any person entitled to recover money by action on any contract
may, on motion before any court which would have jurisdiction in an
action, obtain judgment for such money after not less than twenty
days' notice, which notice shall be in writing, signed by the
plaintiff or his attorney, and shall be returned to the clerk's
office of such court at least five days before the return day of
such notice, and when so returned shall be forthwith filed and the
date of filing noted thereon, and shall be placed upon the docket
for hearing. Such notice may be served, returned as aforesaid,
filed and docketed at any time before or during the term of court
at which the motion for judgment is to be made, and shall be heard
at such term if the term continues for a period of twenty days
after the service of such notice, unless good cause for a
continuance thereof be shown. If the court be not in session on
the return day as set out in the notice, and the term of court be
not ended, motion shall be considered continued until the next
court day of the term and if the term be ended, then the motion
shall stand continued. The return day of a notice under this
section shall not be more than ninety days from its date, unless
the commencement of the next succeeding term of court be more than
ninety days from such date, in which case the return day may be the
first day of such term.
In any such motion, if the plaintiff shall file with his
notice, and shall serve upon the defendant at the same time and in the same manner as the notice is served, an affidavit of himself,
or some other credible person, stating distinctly the several items
of the plaintiff's claim, and that there is, as the affiant verily
believes, due and unpaid from the defendant to the plaintiff upon
the demand or demands stated in the notice, including principal and
interest, after deducting all payments, credits and sets-off made
by the defendant, or to which he is entitled, a sum certain to be
named in the affidavit, no plea shall be filed in the case unless
the defendant shall file with his plea the affidavit of himself, or
some other credible person, that there is not, as the affiant
verily believes, any sum due by the defendant to the plaintiff upon
the demand or demands stated in the plaintiff's notice, or stating
a sum certain less than that stated in the affidavit filed by the
plaintiff, which the affiant verily believes is all that is due
from the defendant to the plaintiff upon the demand or demands
stated in the plaintiff's notice. If such plea and affidavit be not
filed, on motion of the plaintiff judgment shall, without further
proof, be entered for the plaintiff by the court for the sum stated
in his affidavit, with interest thereon from the date of the
affidavit until paid: Provided, That before entering judgment on
any negotiable instrument, the court shall require the plaintiff to
file the same in such proceeding. If such plea and affidavit be
filed by the defendant and it be admitted in such affidavit that
any sum is due from the defendant to the plaintiff, judgment may be
taken by the plaintiff for the sum so admitted to be due, with
interest thereon from the date of the affidavit filed by the
plaintiff until paid, and the case tried as to the residue.
A proceeding under this section shall not be discontinued by
reason of the failure of the clerk to docket the same, or by reason
of no order of continuance being entered in it from one day to
another, or from term to term. Defense to any such motion may be
made in the same manner and to the same extent as to an action at
§56-2-7. Trial by jury.
On a motion, when an issue of fact is joined, and either party
desires it, or when in the opinion of the court it is proper, a
jury shall be impaneled for the trial of the issue.
§56-2-8. Collection of forfeitures; prosecuting attorney's fees.
Unless otherwise expressly provided by law, any forfeiture
payable to the state under any provision of law may be enforced in
the circuit court or other court of record having jurisdiction
thereof, upon notice of motion for judgment brought in the name of
the state. If such judgment shall be for the state it shall include
the costs of the proceeding, and a docket fee of ten dollars for
the prosecuting attorney's services, payable into the county
treasury, which docket fee shall be taxed as part of the costs.