the action the name of Frank L. Lovejoy as a defendant. In reponse to the notice of appearance served in behalf of the defendant Russell, the attorneys for plaintiff served upon Russell’s attorney a true copy of the original complaint on file, properly entitled with the names of all three defendants in this action. Russell’s attorneys retained the copy of the complaint, and did not move to correct the irregularity, nor to strike out the complaint for inconsistency with the summons as published. Held, that the defect was not jurisdictional. The irregularity was waived by omitting to take proper steps to correct the complaint or strike it out. Russell, having made default, and not having answered or demurred to the complaint, could not be then heard to object to the entry of judgment upon the ground that he had not been served with the summons, or appeared voluntarily in the action.
(Opinion Filed, June 3, 1890.)
APPEAL from district court, Cass county; Hon. Wm. B. McConnell, Judge.
Messrs. Francis and Southard, for appellant, cited: Williad v. Massani, 1 Cow. 37; Blanchard v. Strait, 8 How. Pr. 85; Allen v. Allen, 14 How. Pr. 249; Van Wyck v. Hardy, 20 How. Pr. 222.
Messrs. Miller, Cleland & Cleland, for respondent, argued: That the court below had power to correct the defect in the summons and that if not corrected the irregularity did not invalidate the judgment, citing: Kirk v. Murphy, 67 Am. Dec. 640; Van Wyck v. Hardy, 39 How. Pr. 392; Witte v. Meyer, 11 Wis. 205; Gribbon v. Freel, 93 N. Y. 93; Jansen v. Mundt, 30 N. W. Rep. 53. Where summons and complaint are both served a variance between them is an irregularity that cannot be taken advantage of by defendant: City v. Bonesteel, 22 Wis. 252. Omission to insert in summons to non-resident the name of resident co-defendant does not render the summons void: Lewis v. Grace, 44 Ala. 307; Boardman v. Parrish, 56 id. 54; Bogue v. Prentis, 47 Mich, 124. If summons was not void defendant after having permitted judgment to be taken against him cannot set up the irregularity: Baker v. Thompson, 56 Ala. 164; Gould v. Casteel, 47 Mich. 604. Appearance on appeal is a waiver of defect in summons: Ruthe v. Green Bay, etc., Co. 37 Wis. 344; Handy v. Ins. Co. 37 Ohio St. 366.
Wallin, J. In this action judgment was entered by default granting plaintiff certain equitable relief prayed for in the
