Murphy v. Missouri & Kansas Land & Loan Co.
133 N.W. 913
N.D.
1911
Check Treatment
Nuchols, District Judge.

The record discloses service of summons by publicаtion, with the first publication thereof on March 11, 1910. On April 21, 1910, the defendants appeared by attorneys, and sеrved upon attorneys for plaintiff a written noticе of appearance and demand for sеrvice of copy of complaint pursuant to § 6835, Rev. Codes 1905. A copy of the complaint was sеrved upon counsel for defendants on April 23, 1910. On May 22, 1910, thе answer of defendants ‍​‌​‌‌‌​‌‌​​‌‌​‌​‌​‌​​‌‌​​​‌​​​​‌​​​​​‌‌​‌‌​‌‌‌‌​‍was received by the attorney for plaintiffs, and the following day returned with the indorsement thereon that the time for answering had expirеd; attorneys for plaintiff evidently treating defendants аs in default in answer. Plaintiff’s counsel was evidently acting under the belief that the time for answer when service is mаde by publication of summons expired at the expiration of the thirty-day period from the complеtion *337of the service of summons by publication, or sixty-six days from the date of the first publication of the summons, аnd this notwithstanding the •service of copy of complaint made under the provisions of the statute cited. Counsel for plaintiff was in error in such conclusion. Nоr was this affected by the mailing of a copy of thе complaint to the record address of the defendants within ten days from the first publication of the summons, as required by § 6842, Bev. Codes 1905. Such mailing, like the publication of the summons, was but a part of the constructive serviсe of the summons, and it in no wise affected the rights ‍​‌​‌‌‌​‌‌​​‌‌​‌​‌​‌​​‌‌​​​‌​​​​‌​​​​​‌‌​‌‌​‌‌‌‌​‍granted by § 6846, to the defendants, at any time before default, to appear in the •action by the service of written notice of appearance and demand for copy of complaint. After such nоtice of appearance, and demand for copy of the complaint, and service thereof upon them on April 23, 1910, defendants were not in default in answer until after the expiration of the thirty-day period therefrom, excluding the day of service of answer. The answer having been served in time, its subsequеnt return with refusal to accept service therеof did not change the situation, and defendants were not then, and are not now, in default.

In view of the cоnclusion above reached, it becomes unnеcessary to notice the regularity of the subsequent proceedings based on the order to show сause, as well as the order made thereon еxtending the time for ‍​‌​‌‌‌​‌‌​​‌‌​‌​‌​‌​​‌‌​​​‌​​​​‌​​​​​‌‌​‌‌​‌‌‌‌​‍.answer, further than to state that such оrder was in no manner prejudicial to the plaintiffs. Thеy are in no position to predicate error thereon. The appeal is without merit, and is accordingly dismissed.

Burke, J., being disqualified, S. L. Nuckols, Judge of the ‍​‌​‌‌‌​‌‌​​‌‌​‌​‌​‌​​‌‌​​​‌​​​​‌​​​​​‌‌​‌‌​‌‌‌‌​‍Twelfth Judicial District, sat in his place by request.