Page:North Dakota Reports (vol. 1).pdf/235

 Hereafter the costs and disbursements of this court, in such cases, shall be taxed in the court below after the remittitur is sent down to such court. This order is to apply to actions now pending in this court, as well as to future cases.” For the reasons above given, we expressly refrain from passing upon any of the questions presented in the appeal papers. It is proper to say, perhaps, that the present members of this court are of the opinion that the item of $118 should be allowed, and that the item of $4.90, for filing abstracts and briefs, should be reduced to the amount allowed for filing nine abstracts and nine briefs on each side, or to twenty-seven, all told. We are of the opinion that the item of $47.30 should be disallowed. In the absence of a special order directing the clerk to send up a transcript, the original papers should have been transmitted to this court. Under § 5217 of the Comp. Laws, the statute, except in cases where a special order is made, abrogates the rule of court requiring the clerk of the district court to send up transcripts in all cases. All concur.

, of Nashua, New Hampshire, a Corporation Organized Under the Laws of the State of New Hampshire, Plaintiff and Respondent, v., and , Defendants; , Appellant.

1. Defective Summons; Irregularity Waived.

Defendants Carrie E. Lovejoy and R. P. Russell were non-residents, and service was attempted to be made on them by publishing the summons, and by mailing a copy of the summons to them with a copy of the complaint attached thereto. The summons, as published and mailed, was irregular in this: It omitted from its title the name of defendant Frank L. Lovejoy. Russell received the summons as published, by mail, and with it a copy of the original complaint on file, which embraced the names of all of the three defendants. Defendant Russell duly appeared by his attorneys, who served a written notice of appearance on the attorneys for the plaintiff, and demanded that a copy of plaintiff's complaint be served upon them. The notice of appearance on behalf of Russell was entitled, as was the summons which was published and mailed, i. e., such notice omitted from the title of