July, 1901.] Opinion of the Court-HANEY, J. upon the sole ground that the court was without jurisdiction. Whether this be termed a direct or collateral attack, precisely the same question is involved that was involved in Davis v. Cook, namely, is the judgment void for want of jurisdiction? No appeal or proceedings to open the default or vacate on the ground of mistake, inadvertence, surprise, or excusable neglect having been taken during the periods prescribed by the statute (Comp. Laws, §§ 4900, 4939, 5216), irregularities or errors which do not defeat the jurisdiction of the court cannot be considered. Therefore the question to be determined is not whether this court would, in the first instance have ordered the summons to be published upon the affidavit in this case, but whether such affidavit contains sufficient facts to call into exercise the judicial mind of the lower court. If so, its judicial determination, however, erroneous, cannot be questioned on this appeal. It may have been assumed in former opinions of this court that the procedure followed in this case should be regarded as a direct attack, governed by different rules than those applicable to collateral proceedings; but it will be observed that in each case the action of the trial court in granting the order for publication was, in effect, subjected to the same test, the order being sustained except where there was substantially no legal evidence of reasonable diligence. Bothell v. Hoellwarth, 10 S. D. 491, 74 N. W. 231; Plummer v. Blair 12 S. D. 23, 80 N. W. 139; Woods v. Pollard, 14 S. D. 44, 84 N. W. 214; Davis v. Cook, supra. Concerning motions to vacate judgments Mr. Freeman says: "So far as the cases, or any of them, affirm that a motion to vacate a judgment is a direct attack thereon, and may therefore be supported by evidence not admissible on a collateral attack, we think them erroneous. Judgment having been entered in an apparently legal manner, and the jurisdiction of Opinion of the Court-HANEY, J. [ 15 S. D. the court not being retained by any motion or proceeding taken either during the term or within the time allowed by some statute, the court loses all control over the action and the parties thereto; and its subsequent interference to vacate its judgment can only be justified on the ground that the judgment might be avoided in any collateral proceeding, and for that reason to permit it to stand unvacated may probably cause innocent parties to purchase titles based thereon, or to be otherwise deluded by it." 1 Freem. Judgm. § 98. The motion to vacate in this action, made eight years after the judgment was rendered, upon the sole ground that the court was without jurisdiction, did not invoke the exercise of discretion on the part of the circuit court as where one seeks to have a default set aside; nor did it require or authorize the review and correction of any mere irregularities or errors. It asserted that the judgment was void. By that assertion it must stand or fall. If the court was without jurisdiction to render the judgment it did, such judgment is a nullity, whenever and however attacked. If the court possessed jurisdiction, its judgment, however erroneous, must be sustained on this appeal. With the issue raised by defendants' motion thus defined, we proceed to consider the affidavit upon which the order for publication was based. It appears therefrom that the summons was delivered to the sheriff of Lincoln county, where defendants formerly resided, for service, and was returned without being served. If the sheriff made any efforts to find the defendants, such efforts should have been shown by his own affidavit. We recall no law imposing upon that officer the duty of making diligent search for persons upon whom service is to be made, and believe his return in cases of publication is usually made without any extended inquiry. Therefore the presumption, if any, arising from his failure to serve July, 1901.] Opinion of the Court-HANEY, J. the summons, is of little weight, but the fact that the summons was delivered to the officer for service is evidence of good faith on the part of the plaintiff. The law required an honest and reasonable effort to ascertain defendant's whereabouts. The duty of making this effort was intrusted to plaintiff's attorney. There is nothing in his affidavit to suggest that he did not act in good faith. It must be assumed that his sworn statements were believed by him to be true. Taking the affidavit as a whole, it shows that the attorney inquired of the plaintiff and certain persons, including the sheriff of Lincoln county, who were acquainted with the defendants when they resided in that county, concerning their whereabouts, and was informed that they had removed from the county more than five years preceding the time of the inquiries, and that their whereabouts at that time were unknown to the persons of whom he inquired. The showing would have been more satisfactory had the affiant stated in detail what his inquiries were and what replies he received, or, what would have been better still, he might have secured the affidavits of the persons of whom he inquired; but, as heretofore suggested, the methods of making the inquiry and of proving diligence in these cases are without limit. The fact to be ascertained was the whereabouts of the defendants. The most natural and reasonable method of ascertaining that fact was inquiry of persons acquainted with them at their last known residence. Assuming the affidavit to be true, the conclusion cannot be escaped that the affiant was convinced that the defendants had removed from Lincoln county, and that they could not be found. Presuming that affiant acted in good faith, mindful of his duty as an officer of the court, the only fair inference is that he heard of nothing demanding further inquiry, and that further inquiry would not have resulted in finding defendants. It now appearing that defendants were living at the time, of course a successful search was possible. But the law did not demand the use of every possible means to find them. The trial judge was satisfied that a reasonable effort had resulted in failure. Doubtless a more satisfactory showing might have been made, but certainly sufficient facts were stated to call into exercise the judicial mind of the judge and his judicial determination cannot be questioned in this proceeding. Davis v. Cook, supra. Defendant's second contention cannot be sustained. The plaintiff's verified complaint stated a cause of action. It was made a part of the affidavit. It as clearly appeared from the affidavit that a cause of action existed against the defendants as it would had the verified complaint itself been read to the court and referred to in the order for publication. The order of the circuit court is affirmed. NELSON V. JORDETH et al. 1. Where the court's action in withdrawing a case from the jury is not objected to by plaintiff on the ground that he is entitled to a jury trial and subsequently the court decides the case, filing its decision in writing, on appeal the case will be treated as one tried by the court. 2. In a case involving the title to real estate, it was error for the court to take the case from the jury and decide the same himself. 3. Comp. Laws, § 5090, provides that, when notice if intention to move for new trial designates as the ground the insufficiency of the evidence, the statement must specify the particulars in which it is insufficient, and when it designates errors in law the statement must specify the particular errors. Held, that, where the statement contains no specification of errors, it is insufficient. July, 1901.] Opinion of the Court-HANEY, J. 4. In an action involving the title to real estate, defendant at the close of the evidence, moved the court to take the case from the jury, and to decide it upon the questions of law, which was granted. Plaintiff did not object to the motion. Held, that a motion for a new trial based on the court's action was unavailing. (Opinion filed July 10, 1901.) Appeal from circuit court, Potter county. HON. LORING E. GAFFY, Judge. Action by John Nelson against Johanna Jordeth and others to determine conflicting claims to realty. From a judgment in favor of defendants, plaintiff appeals. Affirmed. John Wood, for appellant. A. L. Ellis and Albert Gunderson, for respondents. HANEY, J. This is an action to determine conflicting claims to a quarter section of land in Potter county. Plaintiff alleges ownership in fee simple. His ownership is denied by defendants, who allege title in themselves. They also allege that the action is to set aside a tax deed recorded more than three years before it was commenced; that when they obtained title the land was unoccupied and uncultivated prairie; that they have made permanent improvements in good faith, of the value of $1,912.50; that they have paid $132.94 in taxes upon the land; that the value of the land when they obtained title did not exceed $300; and that the land, without the improvements and taxes so paid, is not worth to exceed $167.06. A jury was sworn. At the close of all the testimony counsel moved the court to direct the jury to find for defendants for the following reasons: (1) Plaintiff has failed to make a prima facie case; (2) it appears from the testimony that defendants and their grantors have paid the taxes continuously for ten successive years, they are in possession of valuable improvements, and they are the |