#### Dunschen, appellant, *v.*Higgins, respondent.

Practice — *appeal*— variance—presumption. In order that the appellate court may take notice of an alleged variance between the summons and the copy served, the record on appeal should set out such variance so that the court may determine its materiality, else it will be presumed to have been immaterial and will be disregarded.

*303*Summons*— service — *copy of complaint*— *usage*— inconsistency. The service of summons with a true copy of the complaint, though such copy was not certified by the clerk as required by section 34 of the Civil Practice Act, is a sufficient compliance with section 36 of the same act, and gives the court jurisdiction to try and determine the case. Such service is according to general understanding and usage, arid if the sections are inconsistent the subsequent should have greatest weight.

*Appeal from, Second District, Missoula County.*

Higgins recovered judgment in tbe probate court of Missoula county against Dunschen, and the sheriff satisfied the same by selling Dunschen’s property. Dunschen then brought this action for the wrongful conversion of his property, on the ground that the probate court never acquired jurisdiction, and that its judgment was void.

*~W.*J. Stephens, for appellant.

Mathew *&*McMubtky, for respondent.

Wade, C. J.

This is an action for the unlawful conversion of personal property. The defendants aver in their answer that the property in question was attached, at the suit of *Higgins*v. *Dunschen*in the probate court, and sold upon a judgment in favor of the plaintiff and against the defendant in that action.

A jury was waived and the case submitted to the court, who made findings of facts, and, among them, the following, upon which the questions in this appeal arise:

> “ I find, as a fact, that the sheriff served on defendant (in the suit of *Higgins*v. *Dunschen)*a copy of complaint, and copy of summons; but not a certified copy of complaint, nor a true copy of summons.”

Upon this finding the appellant makes two questions: 1. “ That a true copy of the summons was not served on Dunschen.” 2. “ That no certified copy of the complaint was served upon him as the law then required.”

The variance between the original summons and the copy served is not disclosed. If in a material particular it would vitiate, but if in a matter wholly immaterial it would not. "We cannot presume that it was material, and declare the service of the summons void.

*3042. "We must consider tbe second question- as if the first one bad not been raised, and it must be deemed that a true copy of the summons was served upon the defendant. No *certified*copy of the complaint was served upon the defendant, but a *copy*of the complaint was so served. The defendant being served with a copy of the summons and complaint, did the court acquire jurisdiction Over the defendant to render a judgment against him ?

Section 28 of the Practice Act provides: *“*Civil actions in the district courts and probate courts shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon.”

Section 34 provides: “ The summons shall be served by the sheriff of the county where the defendant is found. * * * *A copy of the*complaint, *certified by the clerk, shall be served with the*summons.” *.*

Section 35 provides: “ It shall be the duty of the 'clerk issuing the summons * * * to make out a *copy or copies*of the complaint, and deliver the same to the * * * officer * * * executing such summons.”

Section 36 provides: “ A summons shall be executed, except as otherwise provided by law, as follows: First, by reading the writ to the defendant, and delivering to him a *copy*of the complaint ; or second, by delivering to him a *copy of the complaint and writ** * * .”

It is our duty to harmonize sections 34 and 36, if possible, rather than declare one void. Since the amendment to the Practice Act, this question cannot arise, but it is important respecting cases tried before the amendment. The court acquires jurisdiction over a defendant by the service of a summons upon him in the manner provided by law. The summons informs the defendant of the matter of the plaintiff’s complaint against him. *“*The summons shall state the parties to the action, the court in which it is brought, the county in which the complaint is filed, the cause and general nature of the action. * * * .” Civ. Pr. Act, § 30. If no copy or certified copy of the complaint was served with ihe summons, no’ injury could result to the defendant, because he would be informed by the summons that he was a *305defendant in court, and of tbe plaintiffs claim. A certified copy of tbe complaint could do no more tban tbis.

Tbe appellant received from tbe sheriff a copy of tbe complaint, and a copy of tbe summons, wbicb was not a true copy of tbe summons. From tbis finding of tbe court, we can infer that Dun-scben received a true copy of tbe complaint, or tbe contrary would bave been found. What does tbe declaration that be received a copy of tbe complaint mean ? It is a fair construction that be received a perfect copy of tbe original. A copy is a duplicate of tbe thing itself. A copy is perfect, whether certified or not, and with tbe summons tbe appellant received such a copy, a true copy of tbe complaint.

Did such service give the court jurisdiction of Dunschen? Must tbe copy of the complaint, accompanying tbe summons, be not only a true, but a certified copy also ? If a certified, it might not be a true copy, and if true, tbe certificate could not make it more true. Tbe certificate can add nothing, or cure tbe defect if it is untrue, and is a formal matter if tbe defendant receives a true copy of tbe complaint. Every thing has been done that tbe law required to bring him into court, except a certificate declaring that a true copy of tlie complaint is a true copy, when be has been informed that tbe copy be received is true. Tbe court was authorized to render judgment against Dunsehen. Said section 36 has been complied with, and this has not been repealed by section 34. If either is repealed, the latest section in tbe act controls. Both were in force before tbe late amendments, and tbe service of tbe complaint and summons, as directed by either, gave tbe court jurisdiction. Tbis has been tbe usage and general understanding, and statutes long acted upon in good faith, under wbicb rights bave been settled and determined, ought not to be disturbed for slight causes.

Tbe judgment is affirmed.

*Judqment (vfñ/rivb&d**