
    John Foster v. Markland, Dodge & Moore.
    1. Summons, Sei~oed in Time. A summons in an action before a justice of the peace, issued and served on the 31st day of October, to appear at 2 o’clock p. m. of the 3d day of November, is served three days before the time of appearance.
    2. --To contest such a service, the proper motion is, to set aside . the service, not to dismiss the action.
    
      Error from Saline District Court.
    
    The opinion states the case.
    
      John Foster, plaintiff in error, for himself.
    
      J. Q. Mohler, for defendants in error.
   Opinion by

Simpson, C.:

This action was commenced before a justice of the peace in the city of Salina, Saline county. Bill of particulars filed and summons issued on the 31st day of October, 1884; returnable on the 3d day of November, at 2 o’clock P. M. The summons was served on the 31st day of October, the day it was issued. The defendant below, plaintiff in error here, made a special appearance on that day before the justice, and filed a motion to dismiss the action for the reason that the court had no jurisdiction of the person, or of the subject-matter, and for the additional reason “that the summons issued in this case was not served on the defendant three days before the time of his appearance as named in the summons in this case.” This motion was overruled and excepted to, the evidence heard, and a judgment for the plaintiff for $113.50 and costs. A bill of exceptions was presented and signed, and the case taken to the district court on error, and affirmed.

The case is here on petition in error from the district court, the plaintiff in error claiming that it ought to be reversed for error apparent on the face of the record. The question discussed in the briefs of counsel on both sides, is, as to whether there was sufficient time given by the summons. The plaintiff in error is bound by the terms of his motion, and that was to dismiss the case, and even if there was not sufficient time given by the summons for the appearance and answer, it would not be a cause for dismissal of the action. In such a case the summons ought to be set aside and a new one issued giving the defendant the benefit of the statutory requirement in this respect, but it constitutes no reason for the dismissal of the action. We think the service was good, and that sufficient time was given for the appearance of the defendant. Excluding the day of service, there were three days before the time of appearance.

We see no error, and therefore recommend that the ruling of the district court be affirmed.

By the Court: It is so ordered.

All the Justices concurring.  