Page:North Dakota Reports (vol. 1).pdf/239

 which Russell had formerly appeared and demanded service of a copy of the complaint. It is quite true that the copy of the complaint as served was inconsistent with the summons as advertised, for the reason that it embraced the name of the defendant Frank L. Lovejoy, which name was omitted from the title of the summons as advertised, but in all other respects the two were identical as to title. This discrepancy doubtless presented a proper case for a motion, in Russell's behalf, to strike out the complaint for non-conformity with the summons, and such motion, if seasonably made, would have prevailed. Nevertheless, it would have been within the discretion of the trial court, upon the hearing of such a motion, to have given plaintiff leave, with or without terms, to amend the summons by adding the omitted name thereto. Such discretion would not be reviewable. But Russell's attorneys neglected to move in his behalf to correct the irregularities in the title of the action, and elected to retain the complaint, which was served as and for the plaintiff's complaint, in the action in which a copy of the complaint was demanded. The complaint as served on Russell's attorneys, set out a cause of action in favor of the plaintiff, and in which Russell was described as a co-defendant, and it moreover appeared, by the averments of the complaint, that Russell's interests were more or less involved in the relief demanded, and in the subject matter of the action, in connection with the rights and interests of other parties to the action.

The complaint was not answered, or demurred to. On the contrary, Russell defaulted, and did not again appear except specially to object to the entry of judgment against him. We are of the opinion that Russell's retention of the copy of the complaint without objection, and without attempting to correct the same, operated to waive the irregularity in the title of the action, and that they were bound by the complaint as served. The point of appellant's contention is extremely technical, and one which does not go to the jurisdiction. Such objections are not favored by the courts. Courts are created for the purpose of enforcing and protecting rights, not for the purpose of seizing technical and immaterial defects to defeat them. An equitable judgment will not be set aside for mere irregularities not