The opinion of the court was delivered by
Stiles, J.— Respondent obtained a default judgment against the appellant, and subsequently, upon affidavit of its city attorney, the latter sought to have the judgment set aside, and to be permitted to appear and defend. The motion to set aside was denied, and the appeal is here upon *542two grounds, viz.: (1) Error in refusal to set aside the judgment upon the ground mentioned; and (2) error in entering judgment pro confesso, where no copy of the complaint had been served on the defendant. Upon the first ground we cannot interfere, as it was within the discretion of the court entirely whether to grant the motion or not. Besides which, there was little merit in the affidavit, which showed no more than neglect on the part of the city’s officers ; and the affidavit and proposed answer are not properly here, they not having been made a part of the record by statement or bill of exceptions. Windt v. Banniza, ante, p. 147.
But upon the second ground we are constrained to hold with the appellant. Section 289, Code 1881, subdivision 1, provides for the only instance where judgment can be entered upon failure to answer, as of course, without proof of the plaintiff’s demand. The prerequisite is that the summons and complaint shall have been served upon the defendant, and that proof of such service shall have been filed with the clerk. No change in this law has been made. The respondent urges that because the act of February 2, 1888 (Laws 1887-8, p. 24), made it no longer necessary, for the acquirement of jurisdiction over the person of a defendant, that a copy of the complaint be served, we should therefore hold that § 289 was pro tanto repealed or modified. But the reason of the matter does not seem to be with that contention. The two things háve no relation whatever to each other, and there is no evidence that the legislature intended to make any change in the proceedings upon application for judgment. We cannot presume that there was other service than is shown by the record, for the sake of the general rule that courts of record proceed regularly. The return of service clearly shows service of the summons only, and the order for judgment shows no testimony to have been taken or considered.
The judgment must be reversed, and leave granted to *543the appellant to apply to the court below to set aside the default, under § 290 of the code.
Anders, C. J., and Hoyt, Scott, and Dunbar, JJ., concur.