Page:North Dakota Reports (vol. 2).pdf/60

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34
NORTH DAKOTA REPORTS.

ment was utterly futile in any event, because the record dis- closed the fact that no summons was ever issued in the case, hence none could have been served, and no action was commenced or jurisdiction of the person of the appellant obtained; that the pretended judgment was a nullity, and .no subsequent amendment could originate an action to support it. But we think the record upon which he based his motion is against appellant. The affidavit of the officer who made the service shows that the copy served upon appellant was complete, "including the subscription of the names of Francis & Southard, plaintiff's attorneys," and in the amended return he certifies that "the summons so served was subscribed in ink with the signature of Francis & Southard, plaintiff's attorneys." "Signature " means a person's name as set down by himself. See And. Law Dict. It seems certain, then, that there was a summons issued, signed by plaintiff's attorneys, and that the copy delivered to appellant was so signed. The fact that the attorney or the attorney's clerk may have indorsed the word "original " on a copy not signed, and failed to indorse it on the copy that was signed, would not destroy its, effect as a valid summons. Theoretically the officer prepares the copies for defendants. It was his duty to return a summons signed by plaintiff's attorneys, and to see to it that the copies served corresponded therewith. This he inadvertantly failed to do; but service upon appellant of a copy signed by the attorneys could not prejudice him in any manner, and was none the less good service. The facts were that a valid summons was issued and was properly served upon appellant, but when judgment was entered the record showed that no summons had been served. After judgment the court permitted the facts showing jurisdiction to he brought upon the record by amendment to the return. This action of the court was in furtherance of justice and fair dealing, and is abundantly sustained by the authorities. In the case of Railway Co. v. Yocum, 34 Ark. 493, judgment had been rendered by default on a return that failed to show legal service of process. The defendant appealed, and subsequently the trial court allowed the sheriff to amend his return, showing good service. The learned supreme