Hinkel

— The plaintiff commenced an action in ejectment against the defendants by filing a complaint on the 28th of November, 1887. Summons was issued iff reon upon that day, but no service thereof was ever made upon either of the defendants. March 16, 1888, the attorneys for the plaintiff filed with the clerk of' the court the following paper writing, viz.:—■

At the time of filing said dismissal, no appearance had been made in the action by or on behalf of either of the defendants, and the said dismissal was within a day or two thereafter entered by the clerk in his register of actions. September 13,1888, the appellants served upon the plaintiff and filed with the clerk an answer to the *391 complaint in said action. October 17, 1888, the attorneys for the plaintiff served upon the defendants and filed with the clerk a notice that on October 26, 1888, the plaintiff would move the court for an order “ that a judgment of dismissal of said action be entered without prejudice, at plaintiff’s costs, nunc pro tunc as of March 16, 1888, and striking out the answer filed herein September 13, 1888. October 18, 1888, the defendants filed a cross-complaint, which on the same day was served upon…