Page:North Dakota Reports (vol. 1).pdf/438

 diction which has already attached. It is not the case of a mere irregularity in procedure, not jurisdictional in its character. It is the omission to comply with a condition subsequent, jurisdictional in its nature, by the very terms of the statute. Whatever is essential to the perpetuation of temporary and conditional jurisdiction must be regarded with as strict an eye by the courts as though it were a condition precedent to the vesting of any jurisdition at all. See Steere v. Vanderberg, 35 N. W. Rep. (Mich.) 110; Barber v. Morris, 33 N. W. Rep. (Minn.) 560. The view of respondent’s counsel would lead to serious trouble. The statute provides that personal service of the summons without the state is equivalent to publication and deposit. This phrase, “personal service,’ must have the same meaning in all cases where such service is made. There cannot be one rule of construction where property has been attached, and another rule where the suit is instituted to settle a non-resident’s claim to real property within this state, or for the purpose of foreclosing his equity of redemption in real estate situated therein.

According to this view of respondent’s counsel, all that is needed is notice to the defendant in such cases. If only notice is requisite where property is attached, no more is necessary in other cases where the courts are authorized to hear and determine the rights of non-residents upon constructive service of process. In such cases jurisdiction is acquired if the defendant has reasonable notice of the proceedings. This is the effect of respondent’s claim. If the manner of giving that notice may be dispensed with under a loose and so-called equitable construction of the statute, why not substitute the view of the court for the explicit language of the provision requiring the summons to be served or published within thirty days? Why not adjudge that all that is required is that plaintiff should proceed with reasonable diligence, and that forty days would be in time? The truth is that we have no right to speculate about the wisdom of or reason for jurisdictional prerequisites. There must be some precedure to confer jurisdiction. The character of it is a legislative question, subject, of course, to the requirements and prohibitions of the constitution; and no court may upon any supposed reason, or to give effect to any suppose spirit of the