Page:North Dakota Reports (vol. 2).pdf/137

 seems to be irresistable that a proceeding under this statute is a case in equity. This is precisely what such a proceeding is in those jurisdictions in which the right to compel support independently of a divorce action is upheld. It is strictly a case in equity. A case in equity is instituted by the service of a summons. The provision that the practice shall conform as nearly as may be to the practice in divorce cases is significant. This gives the right to apply for temporary support before a final hearing can be had. That is the practice in divorce cases. This right confers upon the wife the same speedy remedy which she would enjoy should she sue for a divorce, and we do not see how the wife could ask for or how the legislature could grant her a more speedy remedy consistent with a full and fair hearing. She can secure temporary alimony in the divorce case, and temporary support when she proceeds under the statute, within a few days after commencing her action. The strongest circumstance in support of our view is the omission of the statute explicitly to provide any process for bringing the defendant into court different from that ordinarily employed. The statute merely declares that the wife may apply to the district court by petition. What is to be done by the court when this petition is presented to it is not indicated. There is absolute silence as to the practice from the time of the presentation of the petition down to the hearing, unless we give meaning to that general provision which declares that "the practice in such cases shall conform as nearly as may be to the practice in divorce cases." No specific procedure is prescribed. To hold that the issuance and service of a summons is necessary to jurisdiction is consistent with this general provision-it preserves the harmony of judicial procedure-while to hold the contrary is to assert that the legislature intended that the court should devise process of its own for bringing in the defendant. And why, it is asked, was not that process designated? This could have been done easily. Is not the silence of the statute in this regard conclusive that the legislature considered that such process had been prescribed by the general provisions that the practice in divorce cases should apply as nearly as possible? While we are not so clear in our views as we would wish to be,