time, where the service is defective, will sometimes bar the right to have it set aside.' In many of the states, the time within which a defective service of process may be attacked by a direct proceeding is limited. Under such statutes a failure to question the service within the time limited is a waiver of the right.2 But a party may be relieved, after the time, on the ground of fraud in obtaining the service where the notice is constructive.3 The right to set aside a judgment on the ground that it was fraudulently obtained may, however, be barred by the statute of limitations." An acceptance of service of a defective summons, if it gives notice of the time and place of appearance, will waive the defects. But it is sometimes provided that no such acceptance or waiver shall be made before the suit is brought, and under such a statute an acceptance or waiver of service before suit brought will not support a judgment by default." A statement by a defendant, to the officer who holds the process for service, that he waives the service of the same, the party not being within the jurisdiction of the court, is not a waiver and does not confer jurisdiction." Authority given an agent to acknowledge service gives him no authority to waive it. But an unauthorized acceptance or waiver of service by an agent may be subsequently ratified.' A waiver, without appearance, must be by some formal 1 Martin v. Gray, 142 U. S. 286; 12 Sup. Ct. Rep. 186; Patmor v. Rombauer, 41 Kan. 295; 21 Pac. Rep. 284. 2 Ante, sec. 22, pp. 111, 115. 3 Ante, sec. 22, p. 115; Dunlap v. Steere, 92 Cal. 344; 28 Pac. Rep. 563. 'Hefferman v. Howell, 90 Mo. 344; 2 S. W. Rep. 470. 5 Gay v. Grant, 101 N. C. 206; 8 S. E. Rep. 99. 6 McAnelly v. Ward, 72 Tex. 342; 12 S. W. Rep. 206. 7 Wade v. Wisenant, 86 Ga. 482; 12 S. E. Rep. 645; Godwin v. Monds, 106 N. C. 448; 10 S. E. Rep. 1044. 8 Clark v. Morrison, 85 Ga. 229; 11 S. E. Rep. 614. 9 Clark v. Morrison, 80 Ga. 393; 6 S. E. Rep. 171. renunciation of the service.1 This may be done by a written waiver indorsed on the writ or complaint.2 The right to be sued in the county or district of one's residence, and to have process served there, is one that may be waived. This may be done in other ways than by an appearance. Thus, it has been held that where the statute of a state authorizes foreign corporations to do business therein on condition that they submit to be sued in the courts of the state, a corporation, by doing business in the sate, waives its right to contest the service of summons therein on the ground that it is a non-resident.3 By appearing in a suit on a judgment, and contesting the same on the ground that there was no sufficient service upon him, a judgment defendant does not waive his right to maintain a writ of error to reverse the same.* As a gen 42. OF NEW PARTIES AND AMENDED PLEADINGS. eral rule, where new parties defendant are made, pending the action, jurisdiction over their persons must be obtained in the same way that would have been necessary if they had been made parties in the beginning.5 If the defendants have appeared and new parties plaintiff have been made by amendment, no new process need issue. It is enough to serve upon them or their attorneys copies of the amended pleadings. But this can not be done where there has been no appearance. So where the proceeding is one in a court of equity auxiliary to an action already pending, and in which the parties have been served, subpena may be served on their attorneys. And in some of the states where, under the 2 1 Collier v. Morgan's L. & T. R. Co., 41 La. Ann. 37; 5 Sou. Rep. 537. Ante, sec. 39; Carter v. Penn, 79 Ga. 747; 4 S. E. Rep. 896. 3 Post, sec. 43; United States v. American Bell Tel. Co., 29 Fed. Rep. 17, 35. Eliot v. McCormick, 144 Mass. 10; 10 N. E. Rep. 705, 710. Plemmons v. Southern Imp. Co., 108 N. C. 614; 13 S. E. Rep. 188. 1 Ante, sec. 38, p. 271; Abraham v. North Ger. F. Ins. Co., 37 Fed. Rep. 731. practice, all pleadings are filed in open court, in term time, no service of copies on the opposite side is necessary. Parties, being in court, must take notice of all pleadings filed. If the original defendants have been served, but have not appeared, a different question arises. If the amendment of the complaint consists only in making new parties without in any way changing the cause of action as against the original defendants, or the amendment is merely formal and a failure to give additional notice could work no injury, the service of a new summons is unnecessary. But where the amendment changes the cause of action against the original defendants, who have not appeared, whether new parties are brought in or not, a new summons or publication against them is necessary. The summons served upon them, personally, or by constructive service, gives the court jurisdiction to render judgment against them in accordance with the complaint on file when service was made, and the notice given; and gives no authority to render judgment upon a materially different cause of action shown by an amended pleading subsequently filed. If notice by publication or otherwise is partially made, when the original defendant dies, a new notice is necessary, as against his heirs or representatives when substituted.3 In the absence of a showing to the contrary, it will be presumed, after a long lapse of time, that the parties were summoned to answer an amended complaint. And, independent of the length of time that has intervened, the same presumptions in favor of the jurisdiction of the court will prevail as in other cases, where the record is silent and the attack is collateral." No new proces is necessary where an additional or substi 1 Bray v. Creekmore, 109 N. C. 49; 13 S. E. Rep. 723. 'Ante, sec. 14, p. 49; Stuart v. Anderson, 70 Tex. 588; 8 S. W. Rep. 295. 3 Ante, sec. 38, p. 284; Paget v. Pease, 2 N. Y. Sup. 335; Reilly v. Hart, 8 N. Y. Sup. 717; Reilly v. Hart, 130 N. Y. 625; 29 N. E. Rep. 1099. 'Best v. Van Hook, 13 S. W. Rep. 119. 5 Ante, sec. 25; Crim v. Kessing, 89 Cal. 478; 26 Pac. Rep. 1074. tuted plaintiff is brought in because he becomes a party voluntarily, and appears in the action by the very act of making the amendment, and the defendant is already before the court. The rule is the same where the complaint is amended by striking out the name of a plaintiff. In some cases where an action is allowed to be continued against the representatives or successors in interest of a defendant upon his death, it is held that a summons need not issue, but a service of the order of continuance on the new parties, with a notice to appear, is sufficient. But the general and better rule is that summons must issue and be served. A somewhat different rule prevails where the cause is pending on writ of error or appeal, and the death of a party to the appeal occurs. At common law the death of the plaintiff in error, after errors assigned, or of the defendant in error, before or after the assigument of errors, did not abate the writ. The proceeding necessary to be taken where the death occurs at this stage of the proceedings, is usually provided by statute in the several states. But the general rule is that a decision, after the death of a party, relates back to the date of the proceeding in error, and that no substitution or notice to his representatives is necessary. If the cause is reversed, and a new trial ordered, the revivor, substitution, and notice to the new parties must take place in the court below." But the appellate court may, in its discretion, permit a substitution of the representatives of a deceased party in that court. It has been held that where a party is joined in an action to foreclose a mortgage, as the wife of the mortgagee and owner, who has not appeared, and upon the death of the latter, a supplemental complaint is filed alleging her to be 'Plemmons v. Southern Improvement Co., 108 N. C. 614; 13 S. E. Rep. 188. 2 Jarrett v. Gibbs, 107 N. C. 303; Murphy r. Gibbs, 12 S. E. Rep. 272; Reynolds v. Smathers, 87 N. C. 24. * Lyles v. Haskell, 35 S. C. 391; 14 S. E. Rep. 829. A Black v. Hill, 29 Ohio St. 86. 5 Williams v. Englebrecht, 38 Ohio St. 96; Prior v. Kiso, 96 Mo. 303; 9 S. W. Rep. 898. Black v. Hill, 29 Ohio St. 86; Foresman v. Haag, 37 Ohio St. 143. an owner, as heir of her husband, a new summons must issue, although she had appeared and answered the original complaint. But this proposition may well be doubted. There seems to be no sound reason for holding that a party served with summons and in court should be entitled to be served with summons upon a supplemental complaint, where such summons would not be necessary in case of an amendment to a complaint changing the cause of action.2 43. IN ACTIONS AGAINST CORPORATIONS.-The manner of making service on corporations, and the place where service may be made, differs very materially, in some respects, from service on private persons, as the result of statutory enactments providing for and regulating such service. Perhaps the most important of these differences is the one which allows service to be made on agents of foreign corporations, and compels such corporations to submit to the jurisdiction of foreign courts. In many of the states a submission to the jurisdiction of its courts, by foreign corporations, is compelled by a statutory provision allowing them to carry on business within the state only on condition that service of process shall be had on their agents or some one appointed for that purpose within the state, and that the trial of litigated questions shall be had in the state courts. The constitutionality of these and similar statutory provisions has been vigorously assailed by the corporations, but the right of the state to impose such conditions has been very uniformly sustained, and the legality of such statutes upheld. But the conditions imposed must not be unreasonable, or such as to deprive the 1 Martin v. Noble, 29 Ind. 216. 21 Work's Prac. and Plead., sec. 209. It may be well to notice, in this connection, that under the practice in Indiana, the service of a copy of any pleading on the opposite party is not necessary. The same is required to be filed and the defendant, if he has been served and appeared, must take notice of it. 3 Paul v. Virginia, 8 Wall. 168; St. Clair v. Cox, 106 U. S. 350; 1 Sup. Ct. Rep. 354; Lafayette Ins. Co. v. French, 18 How. 404; Doyle v. Continental Ins. Co., 94 U. S. 535; Van Dresser v. Oregon Ry. and Nav. Co., |