Page:North Dakota Reports (vol. 2).pdf/57

 turn, and has the same effect as if the amended return had been originally made.

(Opinion Filed June 7, 1891.)

APPEAL from district court, Cass county; Hon. WILLIAM B. MCCONNELL, Judge.

S. G. Roberts, for appellant. Francis & Southard, for respondent.

Action to foreclose a mortgage. Judgment for plaintiff. Defendant Charles H. Howland appeals from an order denying a motion to set aside the judgment. Order affirmed.

S. G. Roberts for appellant:

The power to hear and determine a cause is jurisdictional. It is indispensible to the validity of a judgment in an action that the court by which it is rendered should have jurisdiction of the person of the defendant as well as the subject matter of the action. Kendal v. Washburn, 14 How. Pr. 380. The requirement of the statute that "the summons shall be subscribed by the plaintiff or his attorney" is mandatory and must be substantially complied with to give the court jurisdiction of the defendant. Dix v. Palmer, 5 How. Pr. 234; Lyman v. Milton, 44 Cal. 634; People v. Green, 52 Cal. 577; Ward v. Ward, 59 Cal. 139; Osborn v. McCloskey, 55 How. Pr. 345; Reynolds v. Page, 35 Cal. 296. The filing of the sheriff's amended return does not change the record as to the issuing of a summons. If the summons is so defective as to be in effect no summons, then there is an entire want of jurisdiction and the judgment based upon it is absolutely void. Freeman on Judgments, § 125; Clark v. Thompson, 47 Ill. 25; Hahn v. Kelley, 94 Am. Dec. 742; Coit v. Hoven, 79 Am. Dec. 244; Williams v. Van Valkenburg, 16 How. Pr. 144. The judgment was void for want of jurisdiction over the person of the defendant. A void judgment is in legal effect no judgment. Freeman on Judgments, § 117.

Francis & Southard for respondent:

Good authority will uphold the defective summons as sufficient. Shinn v. Cummings, 65 Cal. 97; Meschen v. More, 54