| Or. | Dec 15, 1876
It is insisted by counsel for appellant that the summons served on the defendant in this case is void, for the reason that it did not run in the name of the “ State of Oregon.” Section 1166 of the code is in these words: “All process authorized by this code to be issued by any court or officer therefor, shall run in the name of the state of Oregon, and be signed by the officer issuing the same; and if such process be issued by a clerk of a court, he shall affix thereto his seal of office.” If a summons is a process authorized by the code to be issued by a court or an officer thereof, it is a process within the meaning of the above section, and would be void unless it runs in the name of the state of of Oregon. Ordinarily a summons is understood to be included under the head of a process, but our code has defined what the requisites of a summons shall be, and consequently it becomes necessary to consult its definition, in order to ascertain what constitutes a summons. Section 51 of the code reads as follows: “The summons shall contain the name of the court in which the complaint is filed, the names of the parties to the action, and the title thereof. It shall be subscribed by the plaintiff, or his attorney, and directed to the defendant, and shall require him to appear and answer the complaint, as in this section provided, or judgment for want thereof will be taken against him.”
The summons contained in this record contains all the requisites of the preceding section, but it does not run in the name of the state of Oregon.
By an inspection of this section it will be seen that it is not required to be issued by a court, or an officer thereof.
The judgment in this case was rendered by default for want of an answer, and in a few days after it was rendered it appears that the defendant filed a motion, accompanied by an affidavit to set aside the default and to be allowed to file an answer. This motion was denied by the court, and this ruling of the court is assigned as error. This was a matter which rested wholly in the sound discretion of the court below, and should not be disturbed, unless it can be shown that that discretion was clearly abused. ( White v. The North-west Stage Company, 5 Or. 99.) And it was further held by this court in the case just referred to, “that a motion to open up a default and to set aside a judgment should be accompanied with a copy of a verified answer, which the party desires to be permitted to file, so that the court may judge whether there be a meritorious defense.”
It appears from the record before us that appellant failed to comply with this rule of practice, and we are unable to discover any abuse of judicial discretion íd the court below.
There being no substantial error in this record, the judgment of the court below is affirmed.