
    Phillips vs Corey.
    Opinion delivered April 2, 1898.
    
      wmnons — Acceptance of Service — Sufficiency—Motion to Quash.
    
    The defendant Phillips was never served with summons. His co-defendant was. The Marshal sent Phillips a copy of the . summons, by mail with the request that he accept service. Phillips replied accepting service and asking when the case would be tried. He afterwards filed a motion to quash the summons because he had never been served and because his acceptance of service was not endorsed on the summons and attested by witness. He admitted in open court that he had signed the acknowledgement of service. Held, That such ac-knowledgement was sufficient without being endorsed on the summons and attested by a witness.
    Appeal from the United States Court for the Central strict.
    Yancey Lewis, Judge.
    Suit in forcible entry and detainer by James Corey ainst T. J. Phillips. Judgment for plaintiff. Defendant peals.
    Affirmed.
    This action was brought in the United States court, ting at South McAlester, on the 27th day of March, 1896, which date the complaint of the plaintiff was filed in the rlrs office of the clerk of said court, and is an action of cible entry and detainer. On the 27th day of March, 1896, ummons was issued from the office of said court against s said defendant. The return made by the marshal on this nmons is as follows:
    
      “Marshal’s Return. United States of America, In dian Territory, Central District — ss.: I received this sum mons this 27th day of March, A. D. 1896, at 5:20 o’clock p m., and served same by copy as follows: At the resid'enc of Elijah Whittington, at South McAlester, Ind. Ter., thi 3d day of April,1896. at 1:30 o’clock p. m.,by leaving copy c this summons with a member of defendant’s family, over 1 years of age, there residing. J. J. McAlester, U. S. Mai shal, Indian Territory, Central District, by E. L. Garner Deputy. ”
    This seems tó be the only return, as such, made b the marhal, but attached to the summons was a lette which reads as follows:
    ‘ ‘ South McAlester, Ind. Ter., 4 — 2—96. T. J. Phi lips, Esq., South Canadian, I. T.— Dear Sir: Please 1 kind enough to accept service in the case of James Corey T. J. Phillips et al. If this is in accordance with yoil wishes, please signify the same by return mail. Veri truly, J. J. McAlester, U. S. Marshal, by E. H. Doyll Deputy.
    ‘ T accept service in above case. When will it tried? T. J. Phillips.”
    On the 15th day of April, 1896, the defendants a peared specially, and filed their motion to quash the sui mons issued in this case, for the reason that the same w not issued according to law; and defendant T. J. Philli] further moved the court to quash the return on the su: mons as to him, which motion is as follows:
    “James Corey, Plaintiff, vs T. J. Phillips and Elij Whittington, Defts, Motion. The defendants, appear! specially, and for the purpose of this motion alone, mo the court to quash the summons herein, for the reason tl ie same is not issued according to law. Defendant T. J. ’hillips further moves the court to qu'ash. the return on the immons herein as to him, for the reason that said return ; not according to law. Stuart, Gordon & Hailey, Attor-ays for Defendants.”
    On the 5th day of October, 1896, the said motion une on to be heard by the court, and was overruled, to hich ruling of the court defendants excepted, and refused appear further; and a jury was impaneled, and, the plain-ff having introduced his evidence, judgment was rendered his favor for the possesston of the premises sued for, and r the costs of this action.
    Afterwards, on the 7th day of October, 1896, the de-Indant T. J. Phillips filed his motion to set aside the ver-et and judgment rendered on the 5th day of October, hich motion is as follows:
    “James Corey, Plaintiff, vs T. J. Phillips et al.,’ De-udants. Comes now the defendant T. J. Phillips, and )ve the court to set aside the verdict and judgment in is case heretofore, on the-day of October, 1896, ren-red, for the following reasons: That the court erred in erruling the motion of the said defendant to quash the re-rn on the summons in this cause. Stuart, Gordon & liley, Attorneys for T. J. Phillips.”
    On the 10th day of October, 1896, said motion came to be heard, and was by the court overruled, and an apal allowed herein.
    
      Stuart, Gordm & Hailey, for appellants.
    
      Jackson, Gole & Bedwine, for appellee.
   Springer, C. J.

(after stating the facts). Only tw errors are assigned by the appellants in this case: First that the court erred in overruling the motion of T. J. Phil lips, defendant below, to quash the return of the marsha on the summons; second, that the court erred in overrulin; the motion of the said T. J. Phillips, praying that the judg ment entered in this case be set aside, and a new trig granted.

While the record discloses the fact that appellant moved to quash the summons, for the reason that it was no issued according to law, yet counsel for appellants do nc contend that the overruling of this motion was error. Tb defendant, T. J. Phillips, appeared specially, for the soi purpose of submitting the motion j ust stated, and also t move the court to quash the return on the summons as i him, for the reason that said return is not according to lav The summons as to the co-defendant of Phillips was prope: ly issued and served, so that the court had jurisdiction as him. It appears, however, that he declined to interpo, any defense to the plaintiff’s action in the court below, he had'appeared, the rights of both him and his co-defen ant could have been secured by his appearance and defens The contention of counsel for appellants is that the' ma] shal’s return on the summons as to T. J. Phillips was not accordance with law. It appears, however, from an exar nation of the record in the case, that the marshal did n| make any return as to Phillips. He simply wrote him letter in which he requested him to accept service in tl| case, and on the letter were indorsed the words: “I acce; service in above case. When will it be tried? [Signed] J. Phillips. ” The record discloses the fact that Philli acknowledged in open court, at the time he appear' specially to make his motion to quash the return, that did receive the letter indicated, from the marshal, and tbl he wrote his acceptance as indicated, and signed his nax o it. Counsel ior appellants insist that this acceptance is tot in accordance with the provisions of Mansfield’s Di-;est Ark. § 4978, which provides that service of sum-ions may be acknowledged by the defendant by an idorsement upon the summons signed. and dated by Im, attested by a witness, and that the affidavit of such fitness shall be proof of the service. There was no necesity for the affidavit of a witness in the case at bar. The ppellant Phillips appeared specially in court, and aeknow-sdged that the acceptance of service was in his handwriting, nd that he had signed his name thereto. Counsel insist, owever, that this acceptance must have been indorsed up-n the summons. It does not appear from the evidence in lis case that a copy of the summons accompanied the íarshal’s letter, but it is plainly inferable from the text of ae marshal’s letter and the acceptance thereon that a copy f the summons did accompany the marshal’s letter. How-ver this may be, appellant Phillips was informed of the .tie of the case, and over his own signature, which he ac-nowledged in open court to be genuine, he accepted the srvice. The court, in overruling his motion to quash the 3turn, did not prejudice appellant Phillips’ substantial ights. He was notified of the pendency of the suit. He ccepted the service which the marshal requested him to icept, but qualified his appearance by stating that it was. lade for the sole purpose of moving to quash the return.

We are of the opinion that appellant Phillips accepted 3rvice in this case in such a manner as required him to take otice of the pendency of the suit, and to appear and make sfense thereto, if he had any defense to submit. His co-sfendant had no excuse or even a pretext to refrain from efending the action. We may assume, under such circum-;ances, that the appellants bad no meritorious defense to íe action, and that their present appearance is for the pur-ose of taking advantage of the merest technicalities, Their substantial rights have not been prejudiced, and no undue advantage has been taken of them. The judgment of the court below is therefore affirmed.

Clayton, Thomas, and Townsend, JJ., concur.  