Concurring Opinion by
Freak, C. J.As I understand it, the motion to set aside the service on the' garnishee was based only on the want of a copy of the signature of the clerk and not on the want of a copy of the seal, but the latter will have to be considered to some extent in disposing of the former question. Also there was no exception to the refusal to allow an amendment. It does not even appear except perhaps by inference that a motion to amend was made.
The law on this subject is in a very unsatisfactory state'. Many nice distinctions are made and decisions can be found on. each side of almost every phase of. the subject. In general it may be said that the law is more strict in the case of original process (such as that now in question) than id the case of mesne process, and in the case of summons to a garnishee, as here; than in the case of a summons to a defendant, and in a case where the' question is raised at the outset, as here, than where it is not raised until after judgment. Some courts have gone so far as to hold that the want of a seal alone in a summons to a defendant may be taken advantage of even after judgment, and upon collateral attack, as in Choate v. Spencer, 13 Mont. 127, based on Ins. *633Co. v. Hallech, 6 Wall. 556. The author of a note on that ease, in 40 Am. St. Rep. 431, says that this is a decision that, by sacrificing substance to fox*m, “canxxot Tut make the judicioxxs grieve’,” and contends that the decision in the 6th of Wall, did not go qxxite so far, but he seems to concede; on the same page that if the objection were taken on motion or plea or even on appeal, the defect could not- be cured by amendment.
Undoubtedly the prevailing rule formerly was, and perhaps still is, in the absence of statute, that the omission of either the seal or the signature, rendex’ed the service void. The better opinion at the present tixne, however*, seems to be that if either is present the writ may be amended or at least ought to he amendable as to the other. Dwight v. Merritt, Fed. Rep. 614; Wolf v. Cook, 40 Fed. Rep. 432. The object of the signature and seal is to show that the summons issued from the court, and the presence of one is sufficient to fxxrnish something to amend and amend by, as it is said. And yet it must be conceded that in most ixxstances whex*e sxxch amendments have been allowed, it has been by expx*ess statxxtox*y authority. Thex*e is no such express axxthoritv here. Section 1260 of the Civil Laws, does not relate to ameixdmeuts of process. It should -be amended so as to apply to more than the pleadings. But it is at least doubtful whether if so anxended it would permit an amendment when both seal and signature are absent. The cases do not seem to go so. far xxnder sxxch stat-xxtes elsewhere. It is trxxe the court has power in the absexxce of statute to amend process, bxxt not to the same extent as xxnder the statutes.
The qxxestions of importance seem to be whether there is suffieieixt on the copy served on the. garnishee to. show that the original sumxnoxxs issxxed from the court and whether the; strictness of the law as to originals shoxxld be relaxed as to copies sufficiently to permit axx amendment as to. both seal axxd signature.
In Dwight v. Merritt, supra, and Peaslee v. Haberstro, 15 Blatchf. 412 (19 Fed. Cas. No. 10,884) it was held that the original could xxot be- anxended when both signature and seal were lacking. The same has been held where, as here, a copy alone was served.’ If a copy alone is served, the case is the same as if *634the original had no seal or signature. For the copy alone is relied on to bring the party into court and he is justified in assuming that the original is like the copy. Hoitt v. Skinner 99 Ia. 360. In Laidley v. Bright, 11 W. Va. 779, referred to in a note in 20 Enc. of Pl. & Pr. 1119, a joint judgment against several defendants seems to have been reversed because the copy of the writ served on some of the defendants was not signed by the clerk, but in Cochran v. Davis, 20 Ga. 581, referred to in the same note, a motion to- dismiss based on a similar ground appears to have been denied. It does not appear in either of those cases whether there was a seal, and there may have been other features in those cases material to the question. In Kelly v. Mason, 4 Ind. 618, the court held that the seal need not be copied, but apparently the signature had been copied. In Lee v. Clark, 53 Minn. 315, in which the signature of the attorneys was not copied, as required by the statute, the names, of the attorneys indorsed on- the summons and signed to the complaint attached to the summons, were copied, the question was not raised until after judgment, and the court said that the proper course would have been to, have moved to set aside the service. In Martin v. Lindstrom, 15 N. W. (Minn.) 1038, the-original, properly signed, was read to the defendant, in addition to handing him a copy without the signature. In Collins v. Merriam, 31 Vt. 622, there was merely a dictum that the omission to copy the signature of a justice of the peace would not defeat the effect of the service as a notice, but so> far as appeared, as held by the court, such signature had been copied; and see Andrus v. Carroll, 35 Vt. 102, holding the writ void where-the magistrate’s name did not appear on the original. Miller v. Ziegler, 44 W. Va. 484 (61 Am. St. Rep. 777), which is much relied on by the plaintiff, related to the original, not to a copy. In that case it was held that the writ- was amendable in respect of the signature. It does not appear that the seal also was wanting, and, to judge from the authorities cited and the language used, the court apparently did not intend to- decide that both tire seal and the signature could be supplied by amendment.
But it appears that the following indorsement on the summons *635was copied on the copy: “Issued at 3:10 o’clock P. M., October 14, 1902. J. A. Thompson, Clerk.” Was this sufficient? This indorsement was not required by law. It was a separate act from signing the writ and was for a different purpose. It was. not intended to authenticate the writ. It was no more than a statement that the writ, such as it was, that is, unsigned and unsealed, had issued. A clerk’s certificate that an invalid writ had issued would not validate it. In Andrus v. Carroll, supra, the magistrate omitted to sign the writ, but signed the minute of recognizance on the same paper just below the space left for the signature to the writ. The court held that this was a separate and distinct act and that the defect was fatal, although no opinion was expressed as to whether it was curable by amendment, as there was no exception to "a refusal to- allow an amendment — which is the case here. In Lindsay v. Kearney County, 56 Nans. 630 (44 Pac. 603), the summons was not signed, but there was an indorsement on the back signed by the clerk stating the amount for which judgment would be taken in case of a default. The court held that the summons was void, on the-theory that the signing of the indorsement was a separate act and-not required by law. In Baker v. Swift, 87 Ala. 330 (6 So. 153), however, the signing' of an indorsement was held sufficient, but in that case the indorsement was of a writ of seizure, which was required by lav/, and this was signed officially, and the property was actually seized, and no- objection was made, and the court remarked that that case was distinguishable in several particulars from that of Harrison v. Holley, 46 Ala. 84, in which summons was held void because unsigned.
Accordingly, I must hold, though with great reluctance, that the service was insufficient and that the- exception should be overruled.