Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/60

== CODE CIVIL PROCEDURE ==

Civil Actions §§ 7435-7438
As to similar provision in Cal. Code Civ. Proc., § 414, see Kelly v. Bandini, 50 Cal. 530; Davidson v. Knox, 67 Cal. 143, 7 Pac. 413; Wharton v. Harlan, 68 Cal. 423, 9 Pac. 727; Rocverts v. Donovan, 70 Cal. 108, 9 Pac. 180, 11 Pac. 599; Alpere v. Schammel, 75 Cal. 590, 17 Pac. 708; McDonald v. Porsh, 136 Cal. 301, 68 Pac. 817; Rowe v. Chandler, 1 Cal. 167; Ingraham v. Gildemeester, 2 Cal. 88; Treat v. McCall, 10 Cal. 511; Browen v. May, 12 Cal. 349; Kelly v. Van Austin, 17 Cal. 564; Tay v. Hawley, 39 Cal. 93.

'''§ 7436. Proof of service. Acceptance.''' Proof of the service of the summons and of the complaint or notice, if any, accompanying the same, must be as follows:

1. If served by the sheriff or other officer, his certificate thereof; or,

2. If by any other person, his affidavit thereof; or,

3. In case of publication an affidavit made as provided in section 7913 of this code and affidavit of a deposit of a copy of the summons and complaint in the post office as required by law, if the same shall have been deposited; or,

4. The written admission of the defendant. In cases of service otherwise than by publication the certificate, affidavit or admission must state the time, place and manner of service.

[R.C. 1905, § 6848; C. Civ. P. 1877, § 107; 1885 ch. 125, § 1; R.C. 1895, § 5262.]

Proof of service when original summons and return are lost. Brettell v. Deffebach, 6 S.D. 21, 60 N.W. 167.

Acknowledgment of service need not state place of service. ''Stoddard Mfg. Co. v. Mattice'', 10 S.D. 253, 72 N.W. 891.

As to similar provision in Cal. Code Civ. Proc., § 415, see Cardwell v. Sabichi, 59 Cal. 490; Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34, 13 Pac. 73; In Matter of Newman, 75 Cal. 213, 7 Am. St. Rep. 146, 16 Pac. 887; Williamson v. Cummings R. D. Co., 95 Cal. 652, 30 Pac. 762; People v. Thomas, 101 Cal. 571 36 Pac. 9; Herman v. Santee, 103 Cal. 519, 42 Am. St. Rep. 145, 37 Pac. 509; Howard v. McCheaney, 103 Cal. 536, 37 Pac. 523; ''Hivernia Sav. & L. Soc. v. Matthai'', 116 Cal. 424, 48 Pac. 370; Woodward v. Brown, 119 Cal. 283, 63 Am. St. Rep. 108, 51 Pac. 542; People v. Lee, 128 Cal. 330, 60 Pac. 854; Pool v. Simmons, 134 Cal. 621, 66 Pac. 872; Joyce v. Joyce, 5 Cal. 449; Alderson v Bell, 9 Cal. 315; Gray v. Palmer, 9 Cal. 616; O'Brien v. Shaw's F. & T. C. Co., 10 Cal. 343; Montogomery v. Tutt, 11 Cal. 307; Mcmillian v. Reynolds, 11 Cal. 372; Calderwood v. Brooks,  28 Cal. 151; Sharp v. Daugney, 33 Cal. 505; Quivey v. Porter, 37 Cal. 458; Drake v. Duvenick, 45 Cal. 455.

§ 7437. Removal of pleadings, etc., from files. Any original pleading or paper in any civil action or proceeding, which by law is required to be filed in the office of the clerk of the court in which such action or proceeding is pending, may upon the request of the party filing the same be removed from the files for the purpose of serving the same either within or without the state.

[R.C. 1905, § 6849; R.C. 1895, § 5263.]

'''§ 7438. Jurisdiction. Appearance.''' From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.

[R.C. 1905, § 6850; C. Civ. P. 1877, § 108; R.C. 1899, § 5264.]

No jurisdiction is conferred where appearance is by unauthorized attorney. Williams v. Neath, 4 D. 360, 31 N.W. 630.

Defendant appealing from justice court on question of law and fact cannot deny jurisdiction of district court, although justice's court was without jurisdiction. Lyons v. Miller, 2 N.D. 1, 48 N.W. 514.

Where a party not properly served with process appears in case and asks to have decree against him set aside on ground of no jurisdiction of person and for fraud and deceit in obtaining decree and that the decree is not supported by the appearance does not validate void decree. Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095.

Appearance makes void process valid and gives jurisdiction from date of appearance. Simensen v. Simensen, 13 N.D. 305, 100 N.W. 708.

As to whether voluntary appearance without issuance of summons gives jurisdiction in South Dakota, see Ayers v. Sundback, 5 S.D. 31, 58 N.W. 4; Ramadell v. Duxberry, 14 S.D. 222, 85 N.W. 221.

Circuit court has jurisdiction of cause transferred to it by stipulation between parties Ramadell v. Duxberry, 17 S.D. 311, 96 N.W. 138.