Page:North Dakota Reports (vol. 48).pdf/492

 summons must be served within specified time is that it is so required by statute. Doheny v. Worden, 75 App. Div. 47; 77 N. Y. Supp. 959; Fisher v. Nash, 47 App. Div. 234; 62 N. Y. Supp. 646; Stowe v. Stacey, 14 New York,.C. L. V. Proc. 45.

In the absence of Statute, the writ of attachment is valid although service by publication was undertaken two years after the issuance of the writ. Robinson v. Marr, 145 Ill. App. 178; McClung v. Sieg, 54 W. Va. 467; 46 S. E. 210; Wester v. Long, 63 Kansas, 876; 66 Pac. 1032.

, J. This is an action to vacate a judgment against the plaintiff as garnishee. An appeal has been taken from an order sustaining a demurrer to the complaint. Among other things, the complaint sets forth the following allegations: On January 3, 1918, the defendant prepared a summons and complaint in an action against one Flynn, also a garnishment summons and affidavit therein, naming the plaintiff herein as garnishee. On January 8, 1918, the garnishment summons and affidavit were served upon the garnishee. On January 12, 1918, the garnishee disclosed the possession of a note for about $340, owned by Flynn. On January 18, 1918, the summons and complaint were filed in the district court. More than two years later, on June 28, 1920, there was filed in the district court an affidavit for publication of the summons, stating that the defendant Flynn was not a resident of the state and that the place of his residence was unknown. On November 20, 1920, there were filed, by the attorneys for Smeland, affidavits of default, stating that the summons was published for six weeks from July I, I920, to August §, 1920, and that no answer or demurrer had been served upon them, although the statutory time therefor had expired. Pursuant to findings of the trial court, judgment for $310.15 and costs in favor of Smeland and against Flynn was entered on November 20, 1920. Likewise pursuant to the order of the trial court, judgment for $240.44 and interest in favor of Smeland and against the plaintiff herein, as garnishee, was entered on December 27, 1920. The complaint also alleges that the defendant did not make publication of the summons within 60 days, as required by statute; that the plaintiff, several months after its disclosure. believing that the action of Smeland had been discontinued, paid to others the property of Flynn in its possession; that the judgment against the garnishee is void; that its remedy by motion is not now available, § 7483, C. L. 1913; and that it possesses no other plain, speedy, or adequate remedy at law. The trial court, in sustaining the demurrer, held that the