*78ON PETITION FOR REHEARING.
Per Curiam.It is insisted that the record shows affirmatively that Mrs. Seeley received the copy of the summons in California since her allegation to that effect is not denied. In her original affidavit to set aside the decree she did not state that she received a copy of the summons out' of the state, or at all. In her reply she admits that a copy was mailed to her in California. If she had alleged this in her original affidavit, and such allegation had not been controverted by plaintiff, it would, as counsel contend, according to the rules of pleading in civil actions, have to be taken as true. But new matter alleged in a reply is to be deemed controverted. Code, sec. 71.
Conceding, however, that the summons was delivered to defendant in California, such fact is not conclusive against the validity of the service. The general rule, undoubtedly is, that the delivery of a summons or copy thereof to a defendant without the state is not of itself valid personal service. 1 Black on Judgts., sec. 288; 2 Id., sections 837, 905. But the validity of the service in this case does not depend upon the mere delivery of the summons. It was not alone the delivery of the summons to defendant, but her voluntary return thereof to plaintiff in this state with her written acknowledgment thereon which constituted, in the language of the code, “ valid and sufficient service.” Thus she made the written admission which gave the court jurisdiction over her person, and which made it incumbent upon her to answer within the statutory time from March 6, 1888, or suffer judgment to be taken against her. Code, secs. 40, 43. In the absence of fraud or other equitable consideration of which no evidence is preserved in this record, we must hold the service to have been sufficient.
It appears by the record that the copies of the summons sent to defendant and by her acknowledged and returned as above stated, were duly proved and filed in the cause, and *79thus the record was substantially amended. The indorsements on said copies were shown to be in the handwriting of the defendant; they were addressed to plaintiff; and by them she admitted in effect the service of the summons, saying in substance to plaintiff: I return these papers to you; be satisfied now and leave me in peace; you have your freedom now; I shall not cross you in any way; nor shall I appear and answer, either to admit or deny one thing. That these wi'itings were accompanied by bitter reproaches and severe denunciations of plaintiff by defendant, does not change the fact that she received copies of the summons, and voluntarily and in writing acknowledged and returned the same to plaintiff in this state with full knowledge of the nature and purpose of the action which the plaintiff had brought against her. It is true, she said in one part of the indorsement that she did not know the meaning of the summons; but her whole language taken together clearly shows that she did know; and that she returned them to plaintiff that he might secure whatever earthly law might do for him. If she were really imposed upon or defrauded in any way, the evidence should have been brought before us to show such facts. As this has not been done, we cannot grant relief.
Counsel insist that the court shall decide the legal question “ whether a default entered April 20,1888, upon service out of the state on March 6,1888, where no copy of the complaint has been served, is or is not valid.”
As we have already said, the record does not present a case of service without the state in the ordinary acceptation of the term, but a case of voluntary admission of service by defendant and by her voluntarily returned to the plaintiff in this state.
As an abstract proposition it is unquestionably true, that if a copy of the complaint be not served with the summons the defendant is entitled to ten days additional to the twenty or forty days otherwise allowed for appearance and answer. Code, sec. 84. But the code does not provide that a copy of the complaint shall be served, nor if served, how the ser*80vice shall be proved. Service of the complaint is not essential to jurisdiction, nor a necessary part of the record proper. The defendant did not either in her petition or ■replication to set aside the decree complain that a copy of the complaint was not served with the summons, nor does it appear that such question was at any time or in any manner raised or determined in the court below. Hence an attempt to review such question in this court has seemed unnecessary, if not altogether improper.
Petition denied.