Vrooman

This appeal is from a judgment of foreclosure. • The action was commenced July 23, 1877, in the district court. Summons was issued and served on the same day, but was not returned or filed until September 26, 1893. The only question involved in the appeal is whether the right to prosecute the action has been lost under the provisions of section 581 of the Code of Civil Procedure.

Li Po Tai never formally appeared in the action, but July 31,1877, Messrs. Howe and Rosenbaum procured a stipulation from plaintiff’s attorney granting an extension of time, which was filed August 6, 1877. Upon this was indorsed: “ Howe and Rosenbaum, attorneys of defendant, Li Po Tai.” By whom this indorsement was made was not shown; but, as it is the custom of lawyers to have all papers filed similarly indorsed, it is presumed that it was done by the consent and direction of the persons named. The same custom demonstrates that it was not intended as a signature in any sense.

It was shown that the same firm negotiated with plaintiff’s attorneys for a stay of proceedings, and procured a stipulation from the attorneys for the plaintiff, whereby plaintiff acknowledged the receipt of all interest due and…