Page:North Dakota Reports (vol. 3).pdf/387

 imperfections, and insufficiency of said proceedings, that it will allow said defendant to come and defend the said action.” The trial court, in making the order appealed from, also made some preliminary findings of fact, one of which, being a matter of which that court was bound to take notice, becomes important here. The fact that the action had once been brought in Stutsman County, and, after issue joined, had been dismissed by plaintiff without the knowledge of defendant, was in no manner brought to the attention of the trial court until respondent's petition was filed.

The attorney for the appellant, M. A. Hildreth, Esq., appeared specially to oppose the motion to set aside the decree, and claimed that the court had acquired no jurisdiction of appellant, in the matter because the motion papers were served upon the attorney, instead of the party. He filed his affidavit, setting forth that service might have been made upon the party in the state, and that the relation of attorney and client no longer existed between himself and Louis A. Yorke. This point is practically ruled against appellant in Beach v. Beach,6 Dak. 371, 43 N. W. Rep. 701. We indorse what is there said, and need not repeat it here. We may add, however; that, granting that the relation, powers, and duties of an attorney cease upon entry of final judgment, yet it is upon the ground that the judgment and decree, as entered in this case, were not final, that the application of respondent was made. This application was not by original action in the same or another court, but by motion in the very case in which the decree was entered. While the court could entertain a motion affecting the decree, it cannot, in any proper sense, be said that the decree was final. See, also, Miller v. Miller, 37 How. Pr. 1; Merriam v. Gordon, 17 Neb. 325, 22 N. W. Rep. 563. The notice to show cause was properly served upon the attorney of record in the case. It was alleged in the notice that the affidavit upon which the order of publication of summons was based was insufficient in form, as not showing what, if any, diligence had been used to find the defendant in this state. Under the authority of Beach v. Beach, supra, that would be true. Indeed,