(99 Wash. 674, 170 Pac. 329.) the court; it is a notice merely." See also Porter v. Vandercook, 11 Wis. 70. It ought to be held sufficient, therefore, when it performs the office of notice of the things required in the statute so certainly as not to deceive or mislead. Worster v. Oliver, 4 Iowa, 345. It is selfdemonstrative that, if the words used in the summons before us mean precisely the same thing as the words used in the statutory form, it is a substantial compliance with that form. Things equal to the same thing are equal to each other. Section 26 of the same Act of 1893 (Laws 1893, p. 415), embodied in Rem. Code as § 252, is as follows: "The time within which an act is to be done shall be computed by excluding the first day and including the last. If the last day falls on a Sunday it shall be excluded." It is plain, therefore, that, by the very terms of this, another section of the same statute, the words "within twenty days after service," even without the words, "exclusive of the day of service," mean precisely what they mean when expressly so qualified. We are thus forced to the conclusion that the summons before us substantially complies with the statutory form, unless we hold that the statutory form is mandatory, regardless of the fact that the statute itself makes a substantial compliance sufficient. Writ-summonsomission ineffect. If the language of the statutory form were so exact and certain as to meet every contingency without reference to the rule for computation of time laid down in § 252, there would be more force in the argument that the legislature had intended the inclusion of the words, "exclusive of the day of service," as mandatory and essential to the validity of the summons. But the statutory form is not so certain as to meet every contingency. It makes no provision for the contingency that the last day of the twenty may fall on a Sunday. So that, in any event, when that con . tingency arises, as it very often may, resort must be had to the later section (§ 252) governing computation of time. Since resort must be had to that section for the meaning of the words, "within twenty days after service," in the one contingency, why, then, may we not resort to it in the other contingency which that section just as fully meets? To put the matter another way: If the words used in the summons, "within twenty days after service," are so certain and definite, merely by a reference to § 252, that, without more, they meet the contingency that the last day of the twenty may fall on a Sunday, then why in reason are they not sufficient, by reference to the same law, to meet the case when the last day of the twenty falls on any other day of the week, since § 252 gives just as definite and certain a meaning to the term, "within twenty days after service," in the one case as in the other? The failure of the legislature to provide for both contingencies in the statutory form of summons strongly argues that the inclusion of the words, "exclusive of the day of service," was not regarded as vital, in view of the fact that the statute governing computation of time in all cases had long existed prior to the passage of the Act of 1893, and was re-enacted therein. Code of 1881, § 743; 2 Hill's Code, § 794; Rem. Code, § 150. Indeed, if the words of the form, "exclusive of the day of service," were held mandatory and controlling in all cases, they would preclude a resort to the provisions of § 252 in any case, and would prevent the application of that section as defining the twenty days, even when the last day of the twenty fell on a Sunday. It may be stated as a general rule that a defect such as that here presented, even in writs or other technical process of the court, would not render such process void. Yonge v. Broxson, 23 Ala. 684; Merrill v. Barnard, 61 N. C. (Phill. L.) 569; Butcher v. Brand, 6 Iowa, 235; Morgan v. Woods, 33 Ind. 23. In each of the following cases a summons much more defective than that here involved was sustained. Guion v. Melvin, 69 N. C. 242; Porter v. Vandercook, supra. In Guion v. Melvin, the court said: "We do not say that this deviation from the statute form is such an irregularity as will make the summons void, although it is always best and safest to follow the form prescribed by the Code. But clearly the defendant cannot be abridged of any right by such an irregularity; he is not obliged to appear until the twentieth day after service, exclusive of the day of service, and any proceeding had before that day is null and void. We think the probate judge was not bound to dismiss the pro-ceeding for the irregularity, but that he should have allowed the defendant the time allowed by the Code for an appearance." We hold that the summons in the case before us presents a substantial compliance with the statute, and that its filing in court with proof of service gave the court jurisdiction to render the personal judgment at any time after twenty days from the date of the service, computed as prescribed in § 252. The summons was not void, hence the judgment was not void. The judgment was not prematurely entered. Respondent offers no excuse for not appear, and, at the Judgment- vacation. facie, that he had a valid defense upon the merits. Paltro v. Gavenas, 97 Wash. 327, 166 Pac. 1156; Chehalis Coal Co. v. Laisure, 97 Wash. 422, 166 Pac. 1158; Ball v. Mander, 19 How. Pr. 468; Black, Judgm. 2d ed. § 346a. The order appealed from is reversed, with direction to the trial court to reinstate the judgment as originally entered. Main, Parker, Fullerton, and Webster, JJ., concur. NOTE. Effect of defects or informalities as to appearance or return day in summons or notice of commencement of an action is treated in the annotation following FLANERY V. KUSHA, post, 841. See specifically as to omissions, subdivision I. i, of that annotation. 1. In an action commenced in the district court, the summons and complaint were served on defendant personally. The summons required her to serve her answer to the complaint "within twenty or . . after service of this summons upon you." She failed to answer and a default judgment was entered against her. Held that, notwithstanding the defect in the summons, the court acquired jurisdiction to enter the judgment. [See note on this question beginning on page 841.] Headnotes by LEES, C. character of summons. (- Minn. - 2. A summons is not process, but merely a notice to defendant that an action against him has been commenced and that judgment will be taken against him if he fails to answer. It is sufficient if it clearly in [See 21 R. C. L. 1263, 1267.] APPEAL by defendant from an order of the District Court for Hennepin County (Rockwood, J.) denying an application for vacation of a default judgment entered against defendant in an action brought to recover a balance due on a sum of money loaned to her. Affirmed. The facts are stated in the Commissioner's opinion. The amount mentioned by defendant, for which the property sold on the execution sale, is not in any way material. Coolbaugh v. Roemer, 32 Minn. 445, 21 N. W. 472. A summons is not a process, but merely a notice to defendant that an action has been commenced. Hanna v. Russell, 12 Minn. 80, Gil. 43; Lowry v. Harris, 12 Minn. 255, Gil. 166; First Nat. Bank v. Estenson, 68 Minn. 28, 70 N. W. 775; Lockway v. Modern Woodmen, 116 Minn. 115, 133 N. W. 398, Ann. Cas. 1913A, 555; Morrison County Lumber Co. v. Duclos, 131 Minn. 173, 154 N. W. 952; Plano Mfg. Co. v. Kaufert, 86 Minn. 13, 89 N. W. 1124. The notice complied sufficiently with the statute to give the court jurisdiction. Lockway v. Modern Woodmen, 116 Minn. 115, 133 N. W. 398, Ann. Cas. 1913A, 555; Porter v. Vendercook, 11 Wis. 70; Mezchen v. More, 54 Wis. 215, 11 N. W. 534; Lenham Mercantile Co. v. Herke, 55 Misc. 310, 105 N. Y. Supp. 472; Griffin v. Jackson, 36 N. Y. S. R. 110, 13 N. Y. Supp. 321; Ambler v. Leach, 15 W. Va. 677; Gould v. Castel, 47 Mich. 604, 11 N. W. 403; Woods v. Brzezinski, 57 Conn. 471, 18 Atl. 252; Ley v. Pilger, 59 Neb. 561, 81 N. W. 507; Barker v. Central West Ins. Co. 75 Neb. 43, 105 N. W. 985; Gould v. Johnston, 24 Minn. 188; Millette v. Mehmke, 26 Minn. 306, 3 N. W. 700. Lees, C., filed the following opinion: Appeal from an order denying de-. fendant's application for the vacation of a default judgment entered against her. The application was made on the ground that the court had not acquired jurisdiction over defendant. On December 29, 1915, a summons was issued in the usual form, except in one particular. It notified defendant that she must serve a copy of her answer to the complaint which was attached to the summons within "twenty or after service of this summons upon you." The name and address of plaintiff's attorney upon whom the answer was to be served were given, and defendant was notified that if she failed "to answer the said complaint within the time aforesaid the plaintiff in this action will take judgment against you for the sum of $106," with interest and costs. Personal service of the summons and complaint was made on March 16, 1916, as defendant was about to leave this state to go to Chicago, where she has since resided. She made no answer, and proof of service of the summons and complaint being filed, together with proof of her default, judgment was entered against her on May 8, 1916. An execution was issued on September 6, 1916, and a levy on land in which she had an interest was made, followed on November 13, 1916, by an execution sale thereof to plaintiff. On September 22, 1917, plaintiff assigned the sheriff's certificate of sale to third parties, who now claim title to the land, there having been no redemption from the sale. Section 7729, Gen. Stat. 1913, prescribes the requisites of a summons. In part, the section reads as follows: "The summons shall if he fails to answer. Hanna v. Russell, 12 Minn. 80, Gil. 43; First Nat. Bank v. Estenson, 68 Minn. 28, 70 N. W. 775; Morrison County Lumber Co. v. Duclos, 131 Minn. 173, 154 N. W. 952. The statute does not prescribe the form of a summons. It is sufficient in this regard if it clearly informs the defendant that it is intended for him and requires him to answer the complaint. Plano Mfg. Co. v. Kaufert, 86 Minn. 13, 89 N. W. 1124. The statute prescribing its requisites is to be liberally construed, there being no general rule as to what defects are jurisdictional. Lockway v. Modern Woodmen, 116 Minn. 115, 133 N. W. 398, Ann. Cas. 1913A, 555. The effect of an omission in a summons such as we have here has not heretofore been considered by this court. Lockway v. Modern Woodmen, supra, comes nearest to being in point. The summons in that case required defendant to answer within twenty days instead of thirty, to which it was entitled by the statute applicable to the class to which defendant belonged. The statute further provided that the service of the summons requiring an answer to be filed within less than thirty days after such service should not be valid or binding. Nevertheless it was held that the summons might be amended to conform to the statute, and that defendant's motion to vacate the service was properly denied. It was said in passing that, if the summons had required defendant to answer within a less number of days than twenty, the mistake would be a mere irregularity and subject to amendment. It is but a short step from this holding to the one in the case at bar. If a summons requiring defendant to answer in less than twenty days after its service gives the court jurisdiction over him, one which required him to answer without stating when must likewise give jurisdiction. Read in connection with the complaint served with it, the summons in this case notified defendant that she had been sued by plaintiff in the district court of Hennepin county; that if she did not answer the complaint by serving a copy of her answer on plaintiff's attorney at his office in Minneapolis, judgment would be taken against her for $106, with interest and costs; and that her answer must be served "within twenty or after service of this summons." Counsel for defendant forcibly contends that "twenty" may refer to any known division of time, such as hours, days, weeks, or months, and that there is nothing to advise defendant—an illiterate woman of foreign birththat twenty days was intended. On the other hand, counsel for plaintiff refer to the rule that everyone is presumed to know the law, and that the statute allows a defendant twenty days after service of a district court summons upon him within which to appear and answer. We do not deem either contention to be of controlling importance, basing our decision upon the holding that the omission of the word "days" did not destroy the validity of the summons, and that such an omission was an irregularity only, so that the court obtained jurisdiction over the defendant and its judgment against her was not void. We have not overlooked the cases (- Minn. 173 N. W. 652.) cited by counsel for defendant. All of them are from other states. Some of them sustain the contention that this summons was fatally defective. Gundry v. Whittlesey, 19 Wis. 212, is perhaps the strongest case in defendant's favor. The Wisconsin statute required the summons to specify the amount for which judgment would be taken in case of failure to answer. The summons notified defendant that, if he failed to answer, plaintiff would take judgment against him for "two hundred and fifty with 10 per cent interest." Omission of the word "dollars" was held to be fatal to the validity of the summons. The Petition for rehearing denied. ANNOTATION. Effect of defects or informalities as to appearance or return day in summons or notice of commencement of action. I. In courts of record: b. Unauthorized return day, 841 d. Want of certainty, 843. e. Returnable too soon, 843. f. Returnable in too long a time, g. Impossible return day, 845. 1. In courts of record. a. Generally. No general rule can be laid down as to the effect of defects or informalities, as to the appearance or return day, in a summons or notice of the commencement of an action in a court of record, because some defects are held to render the summons absolutely void and to invalidate all subsequent proceedings in the action, while other defects are held to be simply irregular and subject to amendment, and because the same defect is held in some jurisdictions to be fatal and in others curable. The question may also, of course be affected by the fact whether the attack based upon the defects in the summons or notice is direct or col e. Impossible return day, 852. lateral; and although many of the b. Unauthorized return day. A summons made returnable at a time other than that fixed by law is irregular, and may be abated or quashed, and will not support a default judgment. Jones V. Austin (1855) 16 Ark. 336; Thompson v. Patterson (1837) 2 Miles (Pa.) 146; Tobler v. Stubblefield (1869) 32 Tex. 188. |