Page:North Dakota Reports (vol. 1).pdf/237

complaint. AH defendants were interested in the subject-matter of the action, and were necessary parties thereto. On December 27, 1888, personal service was had at Fargo, D. T., upon said defendant, Frank L. Lovejoy. The original complaint was filed with the clerk of the district court on January 29, 1889. It appearing by affidavit that defendants Carrie E. Lovejoy and R. P. Russell were non-residents, and that their address was Minneapolis, Minn., the district court, by its order on file and dated January 19, 1889, directed that service of the summons be made upon said non-resident defendants, by mail, and by publication of the summons in manner and form as prescribed by statute; whereupon a summons was published for the requisite period of time, and a copy of the summons as published with a copy of the original complaint annexed, was duly mailed to and received by defendant R. P. Russell. The summons as published, and as mailed to and received by Russell was properly entitled, except that the name of the defendant Frank L. Lovejoy was omitted therefrom. On April 13, 1889, the defendant R. P. Russell, by his said attorneys, appeared, and served a written notice of appearance on plaintiff's attorneys, in which they demanded that plaintiff serve upon them, at their office in Fargo,a copy of the complaint. The notice of appearance corresponded as to its title with the summons as published and mailed in this, that the title of such notice of appearance omitted the name of the defendant, Frank L. Lovejoy; but in all other respects such notice was entitled as was the complaint on file, and as was the summons personally served on Frank L. Lovejoy, and filed with the complaint. Subsequently, and on April 27, 1889, the plaintiff's attorneys served upon Messrs. Francis & Southard, as the attorneys of Russell, pursuant to their demand, a copy of the original complaint in this action, which copy, like the original, embraced the names of all the three defendants herein. The copy of the complaint served upon the attorneys of said Russell was retained by them, and was not returned to the plaintiff's attorneys, and no motion was ever made to amend or correct the title of the complaint or summons, and no motion was ever made to strike out the complaint for non-conformity with the summons.