dissenting.
Two days before the'statute of limitations had run upon his cause of action, a plaintiff filed his complaint and placed in the hands of the sheriff for service a summons which complied with ORS 15.040(2). If serv*424ice of that summons had been accomplished within the state of Oregon any time within the following 60 days, the action would have been commenced within the meaning of ORS 12.030 (attempt to commence an action). But this is not what happened.
Service of summons was never made in Oregon, and ORS 15.040(2) therefore became irrelevant. The summons was served in the state of Washington. When service is to be made outside the state of Oregon, ORS 15.110 controls the contents of the summons as well as the manner of service. The summons shall “require the defendant to appear and answer within four weeks from the date of the service upon him * * ORS 15.110(3). The summons that was served in Washington did not tell the defendant when to appear and answer. Under our decisions, a summons that fails to contain the information required by statute is void. White v. Johnson, 27 Or 282, 294, 40 P 511 (1895); Hunsaker v. Coffin, 2 Or 107 (1864).
In Hunsaker v. Coffin, a default judgment was set aside because of a defect in the summons, which at that time was process. The summons required the defendant to appear and answer forthwith. The court said:
“Evidently, one of the main requisities of a statutory summons was omitted, and a very arbitrary and illegal provision inserted in lieu thereof. Instead of notifying defendant to appear and ansioer on the return day of the summons, which would have been the first day of the next term, it required him to appear and answer ‘forthwith.’ No rule of construction has been better settled than that; when the steps by which a court obtains jurisdiction are prescribed in the statutes, they must be clearly followed, in order that the court may have full authority over the person * * *. While *425the pretended summons omitted one of the most material requisites, it contained one that was wholly illegal. It follows, that a service of such a writ would have no binding force upon the defendant, or compel him to appear and answer any more than would the service of so much blank paper * * 2 Or at 110.
A similar result was reached in White v. Johnson, where the summons failed to contain the name of the defendant. The court said:
“* * * The statute has prescribed but one form of notice through which the court may acquire jurisdiction of the person, and that is by summons, which, although not process, has the force and effect thereof, and if not obeyed will put the party in default. Section 52, Hill’s Code, provides that ‘The summons shall contain the name of the court in which the complaint is filed, the names of the parties to the action, and the title thereof. It shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to appear and answer the complaint, as in this section provided, or judgment for want thereof will be taken against him.’ These requirements are mandatory, and not directory merely " * 27 Or at 294.
The majority opinion says in effect that our statutes on the contents of a summons and on the manner of commencing an action for the purpose of the statute of limitations should be judicially amended so as to read: A plaintiff who is rushed for time need not, however, comply with the foregoing statutes so long as he serves something upon the defendant within the statutory period.
The majority reasons this way:
“* * * We do not think the failure to give relators notice of the time within which to appear *426or answer invaded any interest of theirs Avorthy of protection to snch an extent that the court' did not have jurisdiction to entertain a motion to amend the’ summons.” -
Apparently the right to he free from the hazards of litigation after the statute of limitations has run is not a right worthy of protection in this state.
In assuming that the court had “jurisdiction to' entertain a motion to amend the summons,” the majority has draAvn upon cases from other:-states where summons, as process, may indeed ’he amended at the hands of the court which issued it. But in Oregon a summons is not process. Lane v. Ball, 83 Or 404, 419; 160 P 144, 163 P 975 (1916); Whitney v. Blackburn, 17 Or 564, 21 P 874 (1889); Bailey v. Williams, 6 Or 71, 73 (1876). An Oregon court has no statutory jurisdiction to do anything with a summons-except to pass upon its legal sufficiency if it is challenged.
The whole matter of the issuance of a summons is placed squarely in the hands of the plaintiff or his attorney by ORS 15.020, which provides: “* * * Any time after the action is commenced the plaintiff or his attorney may issue as many original summonses as either may elect * * *.” For that reason, as well as others needless to mention, the attempt of the majority to liken this case to those involving the statutory power of our courts to allow amendments' of a complaint is wide of the mark. What we are dealing Avith here is jurisdiction of the person, which can only be obtained by the means and in the manner prescribed by the statute, unless the defendant voluntarily appears.
It is conceded by the majority that the court Avould not have had the power to enter a Adalid default judg*427ment against a defendant served with a summons that did not comply with ORS 15.110(3).
The whole tenor of the majority opinion is to proclaim what the law should be, not what it is. This is illustrated by the citation to Rule 4(h) of the Federal Rules of Civil Procedure. Under the federal system, a summons is process. Fed E Civ P 4(a) and (b). And Rule 4(h), in substance, gives the trial courts broad powers to allow a summons to be amended unless substantial prejudice' would result to the person upon whdm the process is served. We have no such provision in this state, and this court has no power to adopt the Federal Eules of Civil Procedure, even though it might deem them superior to the statutes of Oregon.
A defendant who has been served with a defective summons should be entitled to ignore the defective summons and wait, until he is served with one that is drawn according to Oregon law. If, in the meantime, the statute of limitation runs against his adversary, that'is not the defendánt’s fault.
If there is any place in the law where certainty is a virtue, it seems, to me that it is in the area of the statutes dealing with the commencement of actions during the period of limitations. To commence an action, a plaintiff must file his complaint and serve or deliver to the sheriff for service a summons. OES 12.030. One would assume that the legislature meant a summons that is legally sufficient. If a plaintiff can commence an action by serving a summons that fails to include a substantive statutory requirement, and then, after the statute of limitations has run, go into court at his leisure and obtain .leave to serve an amended summons, the whole purpose of the statute of limitations is frustrated,. and lawyers will not know what to tell a client *428when he is served with a document that on its face is not sufficient in law to constitute a valid summons.
I have not made an exhaustive examination of the authorities from other states cited by the majority, because we have a statutory scheme in Oregon which has been rounded out with decisions by our own court. If, however, out-of-state cases are considered, two that were called to the attention of this court and were ignored by the majority dealt with defects in summons that were similar to the defect in the instant case. Both cases held that the failure of the summons to inform the defendant of the time in which he must appear was a fatal defect rendering the summons void. Thomas v. District Court, 110 Utah 245, 171 P2d 667 (1946); Perry v. Perry, 94 Vt 487, 111 A 632 (1920).
The majority says that “[i]f the court’s action does not deprive the defendant of an interest which deserves legal protection, there is no reason for saying the court does not have jurisdiction,” citing a federal case decided upon Ohio law. Robinson v. Greyhound Corporation, 245 F2d 65 (6th Cir 1957). There, the summons had not adAdsed the defendant of the amount demanded, a statutory requirement. The court held that the defect was cured by the complaint which Avas attached to the summons and which contained the missing information. For such a holding, the majority could have cited one of our ovm eases. This court has also held that a summons which omitted the name of the county in which the action was pending could be cured by an attached complaint naming the county. First Nat. Bank of Joseph v. Rusk, 64 Or 35, 42, 127 P 780, 129 P 121 (1913). In the case now before us, however, nothing in the hands of the person served advised him when to appear in court. A mandatory statutory requirement was wholly ignored. The ma*429jority cites no case holding such a summons to be valid for any purpose.
I think this court would better serve the administration of justice if it would resist the temptation to grant relief from the errors and omissions of those who do not comply with our procedural laws. Each time we adjust procedural rules to fit the needs of some litigant who has chosen to disregard procedural requirements, we deny the adversary his right to rely on procedural regularity. Even worse, we inject uncertainty into an area of law that needs to have fixed and definite boundaries for the good of all. If an occasional litigant has to suffer the consequences of his failure to read the statutes, so be it.
Perry, C. J., and McAllister, J., join in this dissenting opinion.