and the summons and complaint filed in the District Court on Jan. 18th, 1918, and where, about two and one half years later, an affidavit for publication of the summons was filed upon the ground that the defendant was and had been a non resident, publication thereof had, and judgment, subsequently upon default, rendered against the garnishee, it is held that the provisions of § 7383 C. L. 1913 requiring the publication of a summons within sixty days applies and the judgment is void.
Appeal and error—direct action to vacate void judgment upheld where not objected to below.
2. A direct action to vacate such void judgment, (when entertained by the trial court without objection), instead of a motion or other proceeding therefor, may be upheld.
Opinion filed Nov. 8, 1921.
Action to vacate a judgment in Morton County, Berry, J. Plaintiff has appealed from an order sustaining a demurrer.
Reversed.
Norton and Kelsch, for appellant.
The right to proceed by garnishment is purely a statutory right and the statute must be substantially complied with to confer and preserve the jurisdiction of the Court in such piece? McPhee v. Nidda, 111 Pac. 1149 (Wash.).
"A summons is issued when it is duly drawn and signed with the intention that it be served." § 7383 Compiled Laws 1913; Smith v. Nichol- son, 5 N. D. 426; § 7438 Compiled Laws 1913; Atwood v. Tucker, 26 N. Dak. 637.
‘The statutory remedy by motion, is, however, not the only mode of assailing a judgment. In cases not embraced within the statute, resort may be had to a Court of Equity.” Freeman v. Wood 11 N. D. 8; Yorke v. Yorke, 3 N. D. 343; Campbell v. Warren et al. 19 N. D. 645.
Jacobsen & Murray, for respondent.
Garnishment is purely a statutory remedy, and is separate and distinct from the remedy of attachment, and not any of the attachment statutes are applicable. Park, Grant & Norris v. Nordale, (N. D.) 170 N. W. 555.
The rule is laid down in attachment cases that the only reason why the
