v. Morris, 37 Minn. 194, 33 N. W. 559, 5 Am. St. 836, and Brown v. St. Paul & N. P. Ry. Co., 38 Minn. 506, 38 N. W. 698, judgments were held void on collateral attack for the failure of the plaintiff to file his affidavit for publication within the time prescribed by statute. In the first of these cases the affidavit was not filed until the day of the entry of judgment. In the second case, a condemnation proceeding, the affidavit was not filed until after the summons had been published. An affidavit filed two days after the first publication was held insufficient in Murphy v. Lyons, 19 Neb. 689, 28 N. W. 328. If the affidavit be technically, in point of substance, not in compliance with the statute, a judgment rendered on service by publication is void. Carrico v. Tarwater, 103 Ind. 86, 2 N. E. 227, where the affidavit fails to show that the action is one in which service by publication is authorized; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Nelson v. Rountree, 23 Wis. 367; Forbes v. Hyde, 31 Cal. 342. Insufficiently specific as to due diligence in ascertaining the residence of the defendant. Little v. Chambers, 27 Iowa, 522. In Illinois the statute requires the issuing and return of process "not found" before publication, and a judgment rendered upon such service without the return was held void in Chickering v. Failes, 26 Ill. 507, and also in Firebaugh v. Hall, 63 111. 81. If the affidavit be not made by all the plaintiffs, where two or more join in bringing the action, the judgment rendered is void. Kane v. Rock River Canal Co., 15 Wis. 179; Mecklem v. Blake, 19 Wis. 397. And also where the sheriff fails in observance of the statutory requirement to continue in an effort to find the defendant in the state pending publication. Israel v. Arthur, 7 Colo. 5, 1 Pac. 438; Kennedy v. Lamb, 182 N. Y. 228, 74 Ν. Ε. 834, 108 Am. St. 800. And where the summons is defectively addressed to defendant. Durst v. Ernst, 45 Misc. 627, 91 N. Y. Supp. 13. See also, Vanfleet, Collateral Attack, §§ 331, 348; 6 Current Law, 1090, and cases cited.

There is a conflict in the adjudicated cases upon the question whether defects of the nature of those here mentioned are jurisdictional. Many courts hold to the doctrine that a judgment rendered in the face of such defects is not rendered absolutely void, but irregular, and that the irregularity may be corrected by motion. But the two Minnesota cases above referred to settle the rule in this state, and are in harmony with the general principle that to confer jurisdiction in cases of this kind the statutes must be strictly complied with. 1 Black, Judg. § 232.

But we need not pursue this subject. Reference is made to it only to emphasize the importance given by many courts to errors and defects in the proceedings leading up to the service of summons by publication. The affidavit of publication in such cases is not filed, nor required to be filed, for the information of defendant. He receives no benefit therefrom by way of notice of the suit or otherwise, nor by the sheriff's certificate of "Not found," nor from the order for publication, where an order is required; and if a judgment rendered on service by publication is void for want of jurisdiction for errors in these respects, and in others pointed out in the decisions referred to, for a stronger reason should the error of misnaming defendant be fatal, where the error does not come within the rule of idem sonans, and is such as is likely to mislead and result in his prejudice.

In Ambs v. Chicago, St. P., M. & O. Ry. Co., 44 Minn. 266, 46 Ν. W. 321, it appeared that the land there in question was at one time conveyed to "William H. Brown," and the chain of title disclosed a subsequent conveyance from "William B. Brown." The court there held, Judge Dickinson writing the opinion, that there was no presumption that the two Browns were one and the same person. If that be sound as to private writings, and we have no reason to question the decision, it follows naturally that the same rule should be applied to a judicial proceeding like that at bar, and, if so, we have no right to assume that "George W. Leslie" and "George H. Leslie" are one and the same person.

It is urged by appellant that inasmuch as, in cases where the summons in an action is served by publication, the defendant may, upon good cause shown, which has been construed as an answer stating a defense, come in and defend the action within a year after notice of its entry, the court should be more liberal in the consideration of errors of the character of those here involved, citing Quarl v. Abbett, 102 Ind. 233, 1 Ν. Ε. 476, 52 Am. 662. But we are not persuaded by this argument. If the error in the name is jurisdictional, as we hold, judgment entered is void, and to adopt the contention of appellant would result in compelling a defendant in a particular case to waive the want

of jurisdiction in the court to enter judgment against him and to come to this state and litigate the cause on its merits. This the court has no right to do. The law providing for the manner of acquiring, jurisdiction over nonresidents is plain, and should not be ignored, even in a case of apparent hardship. We are sustained in this view by the supreme court of Michigan in the case of Granger v. Judge, 44 Mich. 384, 6 N. W. 848, where the court speaking through Justice Campbell, said "Where cases and proceedings are not according to the usual course, and are special in their character, they are held void on slighter grounds than regular suits, because the courts have not the same power over their records to correct them. So where there has been no personal service within the jurisdiction, the doctrine prevails that proceedings not conforming to the statutes are void. But this is on the ground that there has been no service whatever, and the party therefore has not been notified in any proper way of anything."

Counsel called attention to the case of Illinois v. Hasenwinkle, 232 Ill. 224, 83 N. E. 815. While the court in that case in the course of the opinion said that the use of a wrong initial of the middle name of a nonresident defendant in condemnation proceedings would not necessarily render the judgment therein void, the real ground of the decision there made was that the defendant, so erroneously named, had permitted the judgment to remain unquestioned for over fifty years, during which time the railroad company had occupied the premises granted by the judgment as its right of way.

We therefore hold, in harmony with the views of the learned trial court, that the publication of the summons in the partition suit directed to "George H. Leslie" did not confer jurisdiction upon the court to adjudicate the rights of "George W. Leslie." Judgment affirmed.

WEST PUBLISHING COMPANY v. J. DE LA MOTT.1

May 1, 1908.

No. 15,764.

Return on Appeal-Court Rule.

Rule 4 of this court is intended to speed the prosecution of a cause, and it enables the respondent, if he so elects, to secure a dismissal of the appeal, either in vacation or term time, without an application to the court. If notice to make the return is not given, it in no manner affects the right of the respondent to move the court for a dismissal of the appeal, or to affirm for a noncompliance with its rules.

Appealable Order.

An order supplementary to execution, requiring the judgment debtor to appear for examination concerning his property, is not appealable.

Defendant having on February 4, 1907, perfected his appeal from an order of the district court for St. Louis county, Ensign, J., ordering him to appear before a referee named for an examination concerning his property, and having failed for more than sixty days to make and file a return with the clerk of this court, plaintiff moved for an order dismissing the appeal. Motion granted.

John A. Keyes, for appellant.

J. H. Whitley, Paul Thompson, and C. N. Dohs, for respondent.

START, C. J.

Appeal from an ex parte order made by a judge of the district court of the county of St. Louis directing the defendant to appear for examination concerning his property. This is a motion to dismiss the appeal on the ground that the order is not appealable, and, further, that, although more than sixty days have elapsed since the appeal was perfected, no return has been made to this court as required by rule 4 of the court.

The defendant admits that the return has not been made, and that the time limited by the rule for so doing has expired, but urges that no notice to make the return, as provided in rule 4, has been served

on him. Rule 4 is intended to speed the prosecution of a cause, and it enables the respondent, if he so elects, to secure a dismissal of the appeal, either in vacation or term time, without an application to the court; or, in other words, the remedy given by the rule is not exclusive, but cumulative, and it in no manner affects the right of the respondent to move the court for a dismissal of the appeal, or to affirm for a noncompliance with its rules. Guerin v. St. Paul & S. C. R. Co., 32 Minn. 409, 21 N. W. 470; Plymouth Clothing House v. Seymour, 74 Minn. 425, 77 N. W. 239.

The order here in question is not appealable. It was so held in Rondeau v. Beaumette, 4 Minn. 163 (224), on the ground that such an order was a preliminary and interlocutory one. The defendant, however, urges that the provision of R. L. 1905, § 4365, subd. 6, giving an appeal "from an order or judgment made or rendered in proceedings supplementary to execution," changes the rule. There has been no change in the character of an order supplementary to execution requiring the judgment debtor to answer as to his property. It is true that the statute provides in general terms for an appeal from an order or judgment in such cases; but this must be construed in harmony with the settled construction of statutes giving the right of appeal from an order, in general language. Such statutes cannot be construed as giving the right of appeal from every order made in a case or proceeding. Were it otherwise, then every ex parte order made by a judge or court commissioner, every preliminary order, and every order made as to the admission or rejection of evidence, in proceedings supplementary to execution, would be appealable, which would be contrary to the manifest intent of the statute and the decisions of this court, and a reproach to the administration of justice. Our statute giving a right of appeal from an order granting or refusing an injunction (R. L. 1905, § 4365, subd. 2) is just as broad and general in its terms as is the statute here under consideration, and yet no appeal lies from an ex parte order granting an injunction. State v. District Court, 52 Minn. 283, 53 N. W. 1157; Fuller v. Schutz, 88 Minn. 372, 93 Ν. W. 118.

The rule is general that no appeal lies from an ex parte order. The remedy is by motion to vacate it. Dunnell, Minn. Pr. § 1739; Sundberg v. Goar, 92 Minn. 143, 99 N. W. 638. We hold that the statute