McDonald

The defendant, a justice of the peace, appeals from a judgment of the superior court prohibiting him from further proceeding in an action brought in his court by one Wilds against McDonald, the plaintiff in this proceeding. The appeal is from the judgment upon the judgment-roll.

‘The findings show the following facts: That summons in the action of Wilds v. McDonald was regularly issued by the justice, and “a duplicate of said summons attached to a copy of the complaint was handed to said W. W. McDonald" by the attor *449 ney for said Wilds; that neither said summons nor complaint was marked “copy,” nor was any other summons shown or read to McDonald; that McDonald’s attorney afterward demanded of the justice permission to inspect the original summons and proof of service, but this request was not complied with for the reason that the summons had not been returned, and a similar request was made of Wilds’ attorney, who replied that he would file the summons and proof of service before he moved in the action. These requests, as well as a subsequent motion to quash the summons and dismiss the action, were made before his time to answer had expired. This motion to quash was denied by…