(concurring). On May 22, 1915, in the county court of Ward county plaintiff obtained a default judgment for $251.16. He appeals from an order opening the judgment and allowing a defense. The motion to open the judgment was based on affidavits of the defendants showing a defense, and that no summons or complaint was ever served on them, and that they knew nothing of the action or the judgment until the sheriff came with an execution and levied on their property. The affidavits are denied; and the contention of counsel for plaintiff is that the question is only on the service of the papers, and that the case presents no cause for relief on the grounds of inadvertence or excusable neglect.
But, as stated in the defendant’s brief, if the summons were actually served on the defendants, and they, being ignorant, did not realize the meaning or know that a suit had been commenced against them, as they themselves swear, and that they had no notice or knowledge of the action until an execution was levied on their property, that is the clearest possible showing of inadvertence and excusable neglect. As the greater contains the lesser, a statement that the summons had never been served *579(though, a mistake) includes a statement that the defendants did not know or realize that such service had been made. Such affidavits must appeal to the court with more force when service is made by a private person, and not by the sheriff. In this case the summons and complaint were typewritten on one sheet of paper, which was not in a cover, and the complaint was not verified. The defendants might well have received such a paper and thrown it aside, thinking it a mere advertisement. It were very different if they had been served by a sheriff. Then the papers would have meant something to the poor unlearned people who can hardly write their own names.
However, the judgment roll is grossly irregular and defective. The proof of service was made by the attorney, and not by the person who claims to have served the papers. It does not show by whom or how or where the service was made. The affidavit of service must state the time, place, and manner of service. Comp. Laws 1913, § 1436.
The order for judgment recites that the return of a private person shows that on May 10, 1915, he made due and proper service. It does not show the place or the manner of service, and it does show that judgment was entered without any evidence, though the complaint is not verified. It shows a judgment for $22.86 attorney’s fees when the legal fee was $5, the same as in district court.
The motion to vacate the judgment was made in the county court when the judgment had been transcripted to the district court, and hence, by consent of counsel it was submitted to and decided by the judge of the district court. Now objection is made that the district court did not have jurisdiction, unless by an appeal from the county court. The point has no force or merit, but in any event it was waived. Parties must practise law in good faith and fairness. They may not trifle with the laws or the courts; they may not waive formalities and submit their, differences to a court of general jurisdiction, and then appeal and insist that the court had no right to hear and determine the very matter submitted. Order affirmed.