Page:North Dakota Reports (vol. 2).pdf/59

 the case, and that, on his request, plaintiff's attorneys delayed taking judgment for some time. In compliance with the leave given by the court, the sheriff filed an amended return attached to a complete summons. No exception to or appeal from this order was ever taken. On the 2d day of January, 1891, the defendant C. H. Howland served notice on plaintiff's attorneys of a motion to vacate the judgment and all subsequent proceedings therein on the ground "that said judgment was entered without authority of law, and is void, in that no summons was ever issued therein, and the court never having acquired jurisdiction of the defendants, or either of them." Subsequently this motion was heard and denied. The motion was made on the papers filed and the record in the case. From the order denying this motion C. H. Howland appeals. Section 4892, Comp. Laws, provides that actions shall be commenced "by the service of a summons." Section 4893 reads as follows: "The summons shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to answer the complaint, and to serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the territory, to be therein specified, in which there is a post-office, within thirty days after the service of the summons, exclusive of the day of service." The summons is served by delivering a copy thereof to the defendant, or leaving a copy at his dwelling-house in certain cases. No exhibition of the original is necessary. When the motion to set aside the judgment was made the record disclosed full and complete legal service. The amended return, when filed, related back to the original return, and had the same effect as if the amended return had been originally made. Murfree, Sheriffs, § 880, and cases cited; also In re Lake, 15 R. I. 628, 10 Atl. Rep. 653. The ruling of the trial court upon the question of permitting the amendment is not before us. This appellant, by counsel, opposed that motion, but saw proper to take no appeal from the decision; hence the recitals in the amended return are conclusive upon him if the amendment was one that could have been made upon any showing. We do not understand appellant to controvert that proposition. His position is that such amend-