denied. The section is a general provision in the Code of Civil Procedure. Thus it has been during and since territorial days. § 62, Code Civ. Proc. 1877. The policy of the law expressed throughout the Code of Civil Procedure is for the expedition of litigation. §8§ 7423, 7425, 7432, 7539, C. L. 1913. It must be presumed that when the garnishee made it disclosure, and Smeland thereafter filed his summons and complaint, there was an intent to hold jurisdiction and to deliver the summons and complaint for purpose of securing service upon the defendant as a nonresident. Otherwise there existed no jurisdiction. Such delivery and tiling, together with the jurisdiction acquired over the garnishee, brought the proceedings, in our opinion, within the purview and policy of the statute, and required a publication within the time prescribed. Such publication was not made, and the judgment accordingly is void. See At- wood v. Tucker, 26 N. D. 622, 631, 145 N. W. 587, 51 L. R. A. (N. S.) 597; Rhode Island v. Keeney, 1 N. D. 411, 45 N. W. 341. Respondent contends that plaintiff’s remedy was by motion and not by action, unless satisfactory reasons are alleged for not proceeding by motion. This is an action to vacate a void judgment. The proper practice undoubtedly was to seek the exercise of the inherent powers of the court by motion, or to appeal from the judgment. Gaar, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867. Such proceedings would be more expeditious. § 7483, C. L. 1913, does not apply. Martinson v. Marzolf, 14 N. D. 301, 309, 103 N. W. 937. However, an action to vacate a void judgment may be entertained. 23 Cyc. 946; Freeman v. Wood, 11 N. D. 1, 8, 88 N. W. 721. The trial court did entertain this action without objection. We are not disposed to disturb the action of the trial court because of the existence of other more appropriate methods of procedure.
The order is reversed, with costs.
Robinson, J., concurs.
Grace, C. J., concurs in the result.
Birdzell, J. In my opinion the proceeding should have been by motion, but as the whole matter was before the lower court, and it apparently considered the merits as fully as if a motion had in fact been made. I am of the opinion that this court should consider the merits. I agree with the principal opinion.
