Wis. 214. If the summons attached to the return is in law and fact an original summons it can be amended by the district court by the addition of the attorney's signature. Farmer's Loan Co. v. Dickson, 17 How. Pr. 478; Crafts v. Sikes, 4 Gray 195; Langmaid v. Kahn, 44 Ark. 404; McCoy v. Boyle, 10 Mo. 391; Polack v. Hunt, 2 Cal. 195; Parker v. Barker, 80 Am. Dec. (N. H.) 131; Whitewell v. Barber, 7 Cal. 64.
The opinion of the court was delivered by
BARTHOLOMEW, J. This is an appeal from an order denying a motion to set aside a judgment. It appears from the abstract that in June, 1888, the plaintiff attempted to bring an action against the defendants for the foreclosure of a mortgage. No appearance was made in the action by either Richmond W. or Charles H. Howland. An appearance was entered for Warner, who was a non-resident, but no answer filed. Judgment and decree were entered in the case in September, 1888, and the judgment recites that due and personal service had been made upon the defendants. The facts were, however, that the summons attached to the sheriff's return of service, and which he certified he personally served upon the Howlands by copy, was not subscribed by the plaintiff or her attorneys, as expressly required by section 4893, Comp. Laws, and this summons was marked "original." On discovering that the summons returned by him was not subscribed by the attorneys, the sheriff, on affidavits and the papers in the case, moved the court for an order allowing him to amend his return. This motion was dated February 24, 1890. On February 26, 1890, an order was entered granting the motion, and directing an amended return to be filed nunc pro tunc. This order recites that the respective parties were represented by counsel in the argument on the motion. The affidavits upon which the motion was based are uncontradicted, and show that the copies of summons served upon the Howlands were subscribed in ink, with the names of plaintiff's attorneys; and the affidavit of one of said attorneys, and which was used upon the motion, shows that R. W. Howland was repeatedly in the office of plaintiff's attorneys after said service and before judgment, asking for an extension of time in
