Page:North Dakota Reports (vol. 2).pdf/61

 court of Arkansas said: "When a summons has been in fact duly served, it is the duty of the defendant to take notice of it, unless all defenses be waived. He cannot shelter himself under a defective return from the consequences of his default, if the true facts be at any time brought properly upon the record. He could not in the action question the truth of the return in either case, and his remedy for a false return would be as effective in the case of the amended as of the original return." Mill Co. v. Bank, 97 Ill. 294, contains a very instructive discussion of this whole question, and the conclusion is reached that an officer's return may always be amended to correspond with the facts, in affirmance of a judgment, but never to defeat a judgment. To same effect, see Moyer v. Cook, 12 Wis. 335; Gasper v. Adams, 24 Barb. 287; Magrew v. Foster, 54 Mo. 258; Montgomery v. Merrill, 36 Mich. 97; Dunham v. Wilfong, 69 Mo. 355; Wilcox v. Sweet, 24 Mich. 355; Murfree, Sheriffs, §§ 875, 875a, and cases cited. Of course reasonable diligence in applying for leave to amend must always be shown, and the rights of innocent third persons protected. In this case the application was made as soon as the mistake was discovered, and within a year and a half from date of judgment, and no third parties are shown to be interested. The appellant had ample notice of the pendency of the action. His default was deliberate and intentional, and, what is a little remarkable, he makes no pretense of having any defense whatever to this action. His appeal to this court is based on no merits in his case, and he is entitled to such consideration as a rigid application of the rules of law gives him, and nothing more. Judgment affirmed. All concur.