Page:Dakota Territory Reports Vol 4.djvu/326

 papers and proceedings already had herein, it is ordered—First that the plaintiffs forthwith serve upon the said attorneys, Dodge & Camp, at their office, in the city of Jamestown, Dakota, true and correct copies of the summons and complaint and of the order appointing a receiver, and all other papers in this case; second, that on the^third day after service, including the day of such service, at the hour of two o'clock in the afternoon of said day, the said plaintiffs show cause before the judge of said court at chambers, in the city of Jamestown, Dakota, why the order heretofore granted appointing a receiver in this case should not be vacated and set aside.

"Dated at chambers, Bismarck, Dakota, March 31, A. D. 1886., Judge.

This order was served upon the attorney for the plaintiffs in that case on the following day, April 1, 1886.

It will be observed that here is no "special" appearance of the attorneys for the relators, but a general order to show cause, granted on their motion, the very terms of which contemplate a hearing by the judge upon the merits, though not, of course, excluding the question of jurisdiction to make the order complained of. The return to the writ states that on the return day of this order the attorneys for the relators appeared, and stated that the terms of the first clause of the order had not been complied with, for the reason that, while the other papers had been served, they had failed to serve the summons; whereupon the court directed the attorney for the plaintiffs to serve relators' attorneys with a true copy of the summons, which was at once done, the original being then in the hands of the sheriff.

It is proper to remark here that a summons in said action, or what was intended as such, was placed in the hands of the sheriff, March 26, 1866, and served by him on Robert H. Gray, one of the relators; but, it being subsequently ascertained that this was defective by reason of an inadvertent omission of the attorneys to sign the same, a second summons was issued April 2d, and placed in the hands of the sheriff April 3d, but, for some unexplained reason, not served by him until April 7th on which date it was served on Robert H. Gray personally.