Page:North Dakota Reports (vol. 1).pdf/238

 After all defendants were in default for want of an answer or demurrer, the attorneys of plaintiff served due notice upon Russell’s attorney that, upon June 10, 1889, at 10, they would apply to the district court for judgment in this action, as demanded in the complaint; and at the time stated in such notice the defendant Russell, by his said attorneys, (appearing specially for such purpose only,) appeared before the district court, and “moved the court to dismiss the application for judgment in the above entitled action in so far as said Russell may be affected, upon the ground and for the reason, that there has been no service of any summons in said action upon him, or appearance entered by him therein.” This motion was denied by the district court, and judgment for plaintiff was entered against all the defendants herein. Russell alone appeals, and the denial of his said motion is the only error assigned in this court.

Counsel for Russell contend that the district court did not acquire jurisdiction of his person in this action, either by the service of a summons upon him or by his voluntary appearance in the action. We think the position is untenable. It is true that the summons, as advertised, and as received by Russell, erroneously omitted from the title of the action the name of defendant Frank L. Lovejoy, and it is also true that Russell’s notice of appearance, as made by his attorneys, corresponded with respect to its title to the title of the action as appeared in the summons as published and mailed; but it is equally true that a copy of the original complaint, containing the names of all defendants in this action, was annexed to the summons mailed to and received by Russell, and after Russell’s attorneys had served notice of appearance, and demanded the service of a copy of the complaint upon them, the plaintiff’s attorneys, in due time, served on the attorneys of Russell another copy of the original complaint, entitled with the names of all three of the defendants. By the service of a copy of the original complaint, made in response to Russell’s demand that a copy of plaintiff's complaint be served upon his attorneys, Russell was informed by plaintiff that the plaintiff relied upon the complaint which was served on Russell’s attorneys, as its complaint in the actin in