tion thereby sought to be acquired over the person of the defendant. The omission of some things regarded as necessary to the protection of a judgment against a direct proceeding to set the same aside, have been held not to justify a collateral attack upon a judgment once obtained.1 Such defects are those which relate rather to the regularity of the process by which jurisdiction is obtained, than to the question whether any process has been issued and served. It is the difference between defective process and no process. Where the process is merely defective, it is held that it may be sufficient to give the court jurisdiction of the person of the defendant, when it may try all the issues between the parties, and may determine the question of the sufficiency of the process upon which its jurisdiction depends, as one of those issues. Should the case go to judgment, it will be presumed that the court has decided the process to be sufficient, and its judgment can only be affected by a direct proceeding for the purpose of setting the same aside, or by seeking the reversal thereof in a court of appellate jurisdiction.2 § 1161. Jurisdiction."Jurisdiction" it has been said, "consists not in the declaration of right, but in the right to declare it, and in declaring it rightly; and therefore presupposes that proper efforts have been made to bring those parties into court who are to be affected by its exercise." Just what are proper efforts to bring those parties into court who are to be affected by the exercise of its right to declare, is beset with some difficulty, in view of the distinction between mere irregularities, and fatal defects in the process. Though process regarded as 1 Pursley v. Hays, 22 Iowa, 11; Westoby v. Day, 22 Eng. L. & Eq., 261. But see Pollard v. Wegener, 13 Wis., 569. 2 Sm. Lead. Cas., 697, 700; Borden v. State, 11 Ark., 519; Sheldon v. Wright, 5 N. Y., 497; Wright v. Marsh, 2 G. Greene, 109; Ewing v. Higby, 6-7 Ohio, 343; Paine v. Mooreland, 15 Ohio, 435; Morrow v. Weed, 4 Iowa, 77; Shawhan v. Laffen, 24 Iowa, 217; Myers v. Overton, 4 E. D. Smith (N. Y.), 428. Ex parte Kinning, 4 C. B., 507; Kinning Buchanan, 8 Id., 271; 1 Sm. Lead. Cas., 839. defective, and liable to be quashed, has been declared sufficient to protect the judgment from collateral attack,' still it cannot be maintained that a mere attempt or pretense at the issuing and service of process would be sufficient to give the court even the temporary jurisdiction necessary to pass upon the sufficiency of the process. Were the rule otherwise, there could be no such thing as a void judgment, fair on its face. There must be a point of departure from the legal requirements in this respect where the pretended process would be held no process at all; otherwise the more complete the fraud in making a show of service of process, the better would be the prospect of success. Many of the defects which utterly vitiate the process, as well as those characterized in some of the cases as mere irregularities, occur with respect to the service and return of process, and will be illustrated by cases cited in subsequent parts of this chapter devoted to the return. From a careful consideration of these cases as well as those already cited, conflicting as some of them will be found, we may safely deduce the rule that where a departure from the requirements. of the law in regard to the issuing or service of process, is in any substantial matter affecting the rights of the defendant, the process will be a nullity, and the judgment may be collaterally attacked. What are matters of substance and what matters of mere form, can best be shown by further reference to the authorities.2 1 Morrow . Weed, 4 Iowa, 77; Shawhan v. Laffen, Supra; Fagg v. Clements, 16 Cal., 389. 2 See Post, VIII. and cases cited. Where a party defendant upon whom process has been defectively served, or who has been served with process irregularly issued, or even where he has been served with no process at all, appears to the action and answers, demurrs generally, asks or consents to a continuance, his appearance will amount to a complete waiver of process. Briggs v. Sneghan, 45 Ind., 14; Peters v. St. Louis, &c., R. R. Co., 59 Mo., 406; Reading v. Ford, 1 Bibb, 338; Ryan v. Driscoll, 83 Ill., 415; Biles Stanton, 69 Ill., 51; Holman v. Eiterman, 83 Ill., 92; Randall v. Falkner, 41 Cal., 242. But a special appearance for the purpose of objecting to irregularities in, or failure of, process cannot be construed into a waiver of the irregularities complained of. Mullen v. Higgins, 13 Abb. Pr. N. S., 297; Jones v. Byrd, 74 Ill., 115. II. NOTICE OF TRIAL. §1162. Required by Statute. 1163. Example from New York Code. 1164. English Rule. 1165. Should not be Vague or Misleading. 1166. Should Specify the Particular Suit. 1167. May be Noticed for Trial by Either Party. 1168. Sufficiently Explicit as to Term. 1169. Party Notified may rely on Term Designated. 1170. Served before Issue Joined. 1171. Does not Depend upon Discretion of Court. 1172. Service upon Party or Attorney. 1173. Effect of Continuance. 1174. Effect of Amendment. 1175. Notice Waived. 1176. Where Judgment Attacked for Want of Notice. 1178. Statement of Wrong Day. 1179. Failure to Place on Calendar. 1181. Time under English Rule. $1162. Required by Statute. The notice treated of in this place is, in general, the creature of statute law, and is sometimes prescribed and regulated in its details by the rules of court, for the reason that the statute does not prescribe with sufficient definiteness its form and contents, nor its inanner and mode of service. In many of those states where the code has been adopted, and the issues between parties are made by pleadings filed in court, within certain prescribed periods, notice of trial is not required to be served upon the party or his attorney. Where the answer is filed on or before a certain day of the return term, and the plaintiff is required either to reply or demur on or before a certain day after the filing of the answer, the court will take notice when an issue, either of law or fact, is reached. When the pleadings, with the exception of the first, are filed in term time, the parties are supposed to be fully advised of the progress of the written altercations they are conducting through their attorneys, and the trial "calendar" or "docket" will notify them when the cause is set down for hearing. § 1163. Example from New York Code. The system of practice, which includes this notice, is therefore peculiar to certain states of the Union,' and to Great Britain. As an example of the provisions of the code of procedure in this respect, we shall incorporate a section which embraces enough to show not only the object of such a notice, but will give a general idea of its principal requisites: "At any time after the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial. The party serving the notice must file with the clerk a note of issue, stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, whether of fact or law; and, if an issue of fact, whether it is triable by a jury, or by the court without a jury. The note of issue must be filed at least eight days before the commencement of the term; unless a different time is prescribed in the general rules of practice. The clerk must thereupon enter the cause upon the calendar, according to the date of the issue. In the city and county of New York, when a party has served a notice of trial, and filed a note of issue, for a term at which the cause is not tried, it is not necessary for him to serve a new note of issue for a succeeding term; and the action must remain on the calendar until it is disposed of." § 1164. English Rule. The English rule is that, previously to the sittings or assizes at which the cause is to be tried, the plaintiff should give due notice of trial. The manner and mode of giving such notice, as well as the time between the 'New York, Wisconsin, New Jersey, Minnesota, and some others. Throop's Code (N. Y.), § 977. Tidd's Prac., 753. service of the notice and the sittings, are regulated, to a considerable extent, by the rules of the court where the cause is triable. These rules differ, in some minor particulars, in the courts of Queen's bench, Exchequer, and Common Pleas, respectively, but generally receive about the same liberal construction in either of these tribunals. The tendency of the decisions seems to be to render the notice of trial subservient to the purpose for which it was designed, though in doing so the court may tolerate a departure from technical accuracy.' $1165. Should not be Vague or Misleading. In the New York code, the contents of the "note of issue," to be filed with the clerk, are prescribed with sufficient definiteness, while the notice to be served upon the opposite party or his attorney is, by the section quoted, simply required to be served at least fourteen days before the commencement of the term, and as to what it shall contain, is left to the discretion of the party giv ing it. But enough is intended, by its designation as a notice of trial, to indicate that it should be sufficiently explicit to convey to the party notified definite information of the fact that the cause is to be entered upon the calendar for trial. The absence of any statutory requirements as to the statements to be contained in the notice, as well as the circumstances under which it is given, would not seem to impose the duty of observing technical accuracy in its statements; but still, it should not be so vague or general as to mislead the opposite party or his attorney. $1166. Should Specify the Particular Suit. So, where two actions, only one of which is noticed for trial, are depending between the same parties, and the same attorneys are employed to prosecute and defend, the notice should specify the partienlar action intended by the giver of the notice, as the one to be tried. Otherwise the notice may be considered too indefinite, and consequently insufficient to meet the requirements of the statute. So, also, it has been held, where a plaintiff who 'Tidd's Prac., 754, et seq., with cases cited in notes. 'Lisher v. Parmelee, 1 Wend., 22. |