true, and judgment rendered accordingly; and where the action is on a contract for the recovery of money only, there must be indorsed on the writ the amount, to be furnished in the praecipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment cannot be rendered for a larger amount and the costs. Sec. 32. Summons not fatally defective, when-Summons in foreclosure Judgment for more than amount indorsed on summons. The provisions of the above statute, which requires that the amount for which judgment is asked in judgments on contracts for the recovery of money only, be indorsed on the writ, should, of course, be complied with. But where such indorsement is not entered on the writ, and the judgment is entered, the judgment is not void. In all such actions objection should be made to the irregularity, and when no objection is made, the irregularity is deemed to be waived.' The statute under consideration does not require the summons in a foreclosure suit, where personal service has been had, to advise the defendant of the nature of the action against him, and of the kind of judgment that will be rendered. Nor is it necessary, the action not being for the recovery of money only, to indorse on the writ the amount Snyder, 5,593; Wilson, 4,259; Kansas, 4,489 (1901), identical; Ohio Gen. Code, Sec. 11,281 (1910), identical; Nebraska, 1,015 (1907), similar. As to the use of the seal, see Goff v. Russell, 3 Kan. 212; Dexter v. Cochran, 17 Kan. 447. See the following cases arising under former laws governing this subject: Eddy v. Lafayette, 163 U. S. 456, 41 L. Ed. 225, affirming 49 Fed. Rep. 187, 1 C. C. A. 441; Gulf v. James, 48 Fed. Rep. 148, 1 C. C. A. 53, 5 Ind. Ter. 636, 82 7 Lawton v. Nicholas, 12 Okla. 550, 73 Pac. 263; Bassett v. Mitchell, 40 Kan. 189, 19 Pac. 671; Same v. Same, 40 Kan. 549, 20 Pac. 192 (rehearing); Beverly v. Fairchilds, 47 Kan. 289, 27 Pac. 985; Simpson v. Rice, 43 Kan. 22, 22 Pac. 1,019; Tootle v. Ellis, 63 Kan. 422, 65 Pac. 675, 88 Am. St. 246. for which, with interest, judgment will be taken if the defendant fail to answer.8 The indorsements on the summons need not necessarily be signed by the clerk with the seal of the court attached." It is a sufficient compliance with the statute, if the amount for which judgment will be taken if the defendant fail to answer, appears on the face of the summons.10 A judgment in case of default in an action for the recovery of money only, cannot be rendered for a greater amount than that indorsed on the summons.11 But where the defendant appears and answers to the merits of the action, the fact that the judgment exceeds the amount indorsed on the summons is unimportant." 12 In equity cases, no indorsement is required on the summons. It was so held in an action where the petition asked for a personal judgment and decree of foreclosure; no answer was filed, and the real estate was sold under default order of sale, no personal judgment having been taken in the action.13 But as a matter of proper practice in equity cases, it is better to indorse on the summons, not only the amount claimed, but also the kind of relief asked. Sec. 33. Summons may issue to another county, when. Where the action is rightly brought in any county, according to the provisions of the chapter herein on the subject of venue, the summons may then issue to any other county, 8 Horton v. Haines, 23 Okla. 878, 102 Pac. 121; Sparks v. Bayer, 5 Kan. App. 721, 46 Pac. 980; Beverly v. Fairchilds, 27 Pac. (Kan.) 985. Abby v. Grimes, 44 Kan. 415, 24 Pac. 426. A summons is not fatally defective by reason of being entitled in the probate court of P County, and directed to the sheriff of P County, when the name of said county had recently been changed to that of Noble County, said sum mons being regular in all other respects. Nix v. Gilmer, 5 Okla. 740, 50 Pac. 131. 10 Thompson v. Pfeiffer, 60 Kan. 409, 56 Pac. 763. 11 Elmer v. Chicago, 105 N. W. (Neb.) 987. 12 Essick v. Omaha, 62 N. W. (Neb.) 67. 13 Conn v. Rhodes, 26 O. S. 644; Larimer v. Clemmer, 41 O. S. 449. against any one or more of the defendants at the plaintiff's request.14 Whether the defendant's interest in the action, and the result thereof, is adverse to that of the plaintiff, is the test whether the action is rightly brought in one county so that service may be had in another.15 Another test by which to determine whether a defendant may be served in a county other than the one in which the action is brought, is that the person served in the county where the action is brought must have a real and substantial interest in the subject-matter of the action adverse to the plaintiff, and against whom some substantial relief may be obtained; and the action must be rightly brought in the county in which it is brought, as against a person served with summons in such county. "No lawful thing founded on a wrongful act can be supported," hence, service of summons cannot be obtained by the wrongful act of the plaintiff.1 14 Snyder, 5,594; Wilson, 4,260; Kansas, 4,490 (1901), identical; Nebraska, 1,066 (1907), identical; Ohio Gen. Code, Sec. 11,282 (1910), has the identical words of this statute; then there is added the words, "but no maker or acceptor, or if the bill is not accepted, any drawer of an instrument for the payment of money only, can be held liable in an action thereon, except on warrant of attorney, in any county other than the one in which he or one of the joint makers, acceptors or drawers reside or are summoned." In a personal action, having but one defendant, service of summons on him in another county is void. Walker v. Stevens, 72 N. W. 1,038. 15 Barry v. Wochasky, 76 N. W. (Neb.) 1,080. 16 Wells v. Patton, 50 Kan. 732, 33 Pac. 15; Ruhlman v. Hulze, 32 16 Kan. 598, 5 Pac. 176; Brenner v. Eggly, 23 Kan. 123; Adair v. Forey, 105 N. W. (Neb.) 714; Dunn v. Hazlitt, 4 O. S. 435; Allen v. Miller, 11 O. S. 374. Where two joint makers of a promissory note reside in different counties, are sued before the note is due, in the county in which one of them resides, and not in the county where the other resides, and summons is served on the defendant residing in the county in which the action is commenced, and a summons and order of attachment is issued to the other county, and is there served on the defendant residing in that county, and his property therein situated is attached, and no order of attachment is issued and no ground for attachment exists as against the defendant residing in the county in which the action is comenced, held, that the action is not rightly brought in the An action to recover damages under the act requiring compensation for causing death by wrongful act, neglect or default, may be brought in any county in the State where the defendant, or any one of the defendants, reside or may be served. And, in such case, where there were several defendants, against all of whom a good cause of action is alleged, and some of whom are served in the county, and others reside and are served in a county other than that where the suit is brought, the validity of the service of summons in such other county, and the jurisdiction of the court over the persons of the nonresident defendants, depends upon the truth of the allegations of the petition." The statute authorized the service of summons upon a railroad company in any county through which its road passes, and when the action is begun in any of such counties, a summons may issue for the defendant in any of the other counties in the State.18 The statute in question applies where the defendants are jointly liable in the action, and a part of them reside in other counties.19 It applies also where one of two defendants in the county where the action is begun, acknowledged service on the back of the summons. In such case, summons may issue and be served upon a defendant living in another county.20 It has been held that a party who seeks to rescind a contract for the exchange of real property by an action instituted in the county where the real estate is situated, against persons who reside in another county, cannot, after they have been summoned and appear in the action, amend his petition, by adding thereto a second cause of action for the breach county in which it is brought, and that the defendant in the other county may, for that reason, have the attachment dissolved. Ruhlman V. Hulze, 32 Kan. 598, 5 Pac. 176. See Section 18, supra. 17 Drea v. Carrington, 32 O. S. 595. 18 Newberry v. Railroad, 52 Kan. 613, 35 Pac. 210. 19 Horst v. Lewis, 98 N. W. (Neb.) 1,046. But where the pleadings show a joint and several liability, the rule does not apply. McKibbon v. Day, 98 N. W. (Neb.) 845. 20 Hendrix v. Fuller, 7 Kan. 332. of the covenants of warranty, and thus blend a local with a transitory cause of action. He must be confined to the cause of action that authorizes such a service of summons.2: 21 Sec. 34. Summons-Service and return. The summons must be served and returned by the officer to whom it is delivered, except when issued to any other county than the one in which the action is commenced, within ten days from its date; and when issued to another county, it must be made returnable in not less than ten nor more than sixty days from the date thereof, at the option of the party having it issued.22 It has been decided by a court of last resort having a statute similar to the above that where the summons is made returnable less than the said ten days, neither the summons or return, is void or voidable.2 Where the summons is made returnable more than ten days from the date of its issue, it is not, for this reason, void, where the answer day is fixed in the summons twenty days after the return day, and a judgment thereon is not void, and cannot for such irregularity be enjoined.24 A summons directed to the sheriff of the county in which the action is brought, is not void or voidable because made returnable in two days.25 Sec. 35. The summons-The return of the sheriff may be corrected by amendment. The power to amend the return of the sheriff should be liberally construed, and with a view to promote justice. Hence, it is always proper and competent for the sheriff to amend his return in order that it may speak the truth. If the officer, in making his return, has discovered that he has 21 Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785. See Section 18, supra. 22 Snyder, 5,595; Wilson, 4,261; Kansas, 4,491 (1901), identical. 23 Clough v. McDonald, 18 Kan. 114; Jewell v. Morse, 21 Kan. 734; Ryan v. Cranslow, 27 Kan. 672. 24 Lawton v. Nicholas, 12 Okla. 550, 73 Pac. 263. 25 Swerdsferger v. State, 21 Kan. |