STONE, Circuit Judge.
May 17, 1929, a check refunding an overpayment of income tax was received by French and Hecht, a partnership, in Iowa. May 11, 1931, this action was brought against the individuals composing the partnership on the ground of erroneous refund. After various proceedings, defendant Hecht filed a motion (in the form of an amendment of an earlier motion) to dismiss as to him. Among other things, the motion urged that the action was barred by the applicable' two-year statute of limitations, Revenue Act of 1928, § 610(b), 45 Stat. 791, 875, 26 U.S.C.A. § 1646(b), because no legal summons had been issued or served within two years from receipt of the refund (United States v. Wurts, 58 S.Ct. 637, 82 L.Ed. -, decided March 14, 1938)—such service, or at least issuance, being the institution of an action under the Iowa statutes. Thereafter plaintiff filed a motion to amend an original summons and an alias summons. Plaintiff filed a resistance to the motion to dismiss.
A hearing was had on the two motions, at which evidence in t-he form of a stipulation of facts and an affidavit by Hecht was introduced. From the undisputed evidence, it was clear that a paper (intended as a summons) and another identical paper (intended as an alias summons) had been delivered to the marshal within the statutory limit but service was after such limit. On January 15, 1937, the court entered an order sustaining the motion of Hecht to dismiss and dismissing the action as to Hecht1 and on January 21, 1937, amended that'order by including therein a denial of plaintiff’s motion to amend. From these two orders, plaintiff brings this appeal. Appellant presents here three issues: (I) the action was begun within the above applicable statutory limitations; (II) appellee has waived any insufficiency of summons by general appearance; (III) the motion to amend the original and alias summons should have been sustained.
I. Commencement of the Action.
Section 610(b) of the Revenue Act of 1928, 45 Stat. 791, 875, 26 U.S'.C.A. § 1646(b), requires suits to recover refund of income taxes' to be “begun” within two years after making the refund.
The Conformity Act, 28 U.S.C.A. § 724, requires the existing state “practice, pleadings, and forms and modes of proceeding” to be followed in law cases, and this provision includes the method of bringing actions and the forms of summons. Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 42 L.Ed. 602; United States v. Van Dusen, 8 Cir., 78 F.2d 121.
The pertinent Iowa statutes are sections 11012 and 11055, Code of Iowa, 1927. Section 11012 deals with “Commencement of action” and provides for service by the sheriff or ‘by “another person” and provides that “commencement of the action” shall be “the delivery of the original notice to the sheriff” when service is by the sheriff or “the actual service of that notice” where service is by another than the sheriff.
Section 110-55 deals with “Original Notice.” It declares that an “action in a court of record shall be commenced by serving the defendant with a notice,” the contents of which are prescribed therein. The section does not state whether the above-quoted portion refers only to service by other than the sheriff or not. However, the quoted portion can be recon[924]*924ciled with section 11012 by regarding it as referring in this respect only to instances where service is other than by the sheriff. Any other construction would create a conflict between the two sections which, of course, should be avoided if possible. There is another reason why, with this character of issue, section 11012 should be held applicable here. That section is contained in chapter 487 entitled “Limitations of Actions” while section 11055 is contained in chapter 489 entitled “Manner of Commencing Actions.” The issue here is whether this action is barred by limitation, therefore, if the two sections are in conflict, it would seem that 11012 should prevail here because it deals with commencement of actions for purposes of limitations. The statute is so construed by the Supreme Court of Iowa. Fernekes v. Case, 75 Iowa 152, 39 N.W. 238; Phinney v. Donahue, 67 Iowa 192, 25 N.W. 126.
The service here was by a deputy marshal which is the equivalent to service by a sheriff. Hence, section 11012 applies and this action was or would be commenced by delivery of an original notice— here a summons—to the marshal. This delivery was, concededly, within the two-year period under section 610(b) of the Revenue Act 1928.
The controversy here, however, is not so much over the date of delivery or of service. It is whether the paper delivered to the marshal was so fatally defective as a summons that it failed as such. Obviously, a paper delivered to the marshal for the purpose of bringing a party into court must contain the necessary requisites.
Section 777 of title 28, U.S.C.A., provides that “No summons ^ * * shall be abated, arrested, quashed, or reversed for any defect or want of form.” Obviously, this provision does not extend to defect or want of substance. While this statute prevails over state law and is without the Conformity Act (Mexican Central Ry. Co. v. Duthie, 189 U.S. 76, 78, 23 S.Ct. 610, 47 L.Ed. 715; Henderson v. Louisville & N. R. Co., 123 U.S. 61, 64, 65, 8 S.Ct. 60, 31 L.Ed. 92; Howe v. Haterius, 8 Cir., 66 F.2d 835, 837; In re Griggs, 8 Cir., 233 F. 243, 244), yet, by its very terms, it does not extend to substantial defects. Therefore, the question here (as to section 777) is whether the defects of the summons here are merely as to form or as to substance. That matter is to be determined by the state law under the Conformity Act (United States v. Van Dusen, 8 Cir., 78 F.2d 121) unless there is a governing rule of court which is valid. Boston & M. R. R. v. Gokey, 210 U.S. 155, 28 S.Ct. 657, 52 L.Ed. 1002; Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 42 L.Ed. 602; United States v. Van Dusen, 8 Cir., 78 F.2d 121, 123. First we will examine the state law and then a rule of court here cited.
Section 11055, Code Iowa 1927, sets forth the contents of an “original notice” (summons). They are as follows: “a notice, signed by the plaintiff or his attorney, informing him of the name of the plaintiff, that a petition is, or on or before the date named therein will be, filed in the office of the clerk of the court wherein action is brought, naming it, and stating in general terms the cause or causes thereof, and if it is for money, the amount thereof, and that unless he appears thereto and defends before noon of the second day of the term at which defendant is required to appear, naming it, his default will be entered and judgment or decree rendered against him thereon.”
This form of summons is applicable where service is made by a sheriff (Cummings v.
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STONE, Circuit Judge.
May 17, 1929, a check refunding an overpayment of income tax was received by French and Hecht, a partnership, in Iowa. May 11, 1931, this action was brought against the individuals composing the partnership on the ground of erroneous refund. After various proceedings, defendant Hecht filed a motion (in the form of an amendment of an earlier motion) to dismiss as to him. Among other things, the motion urged that the action was barred by the applicable' two-year statute of limitations, Revenue Act of 1928, § 610(b), 45 Stat. 791, 875, 26 U.S.C.A. § 1646(b), because no legal summons had been issued or served within two years from receipt of the refund (United States v. Wurts, 58 S.Ct. 637, 82 L.Ed. -, decided March 14, 1938)—such service, or at least issuance, being the institution of an action under the Iowa statutes. Thereafter plaintiff filed a motion to amend an original summons and an alias summons. Plaintiff filed a resistance to the motion to dismiss.
A hearing was had on the two motions, at which evidence in t-he form of a stipulation of facts and an affidavit by Hecht was introduced. From the undisputed evidence, it was clear that a paper (intended as a summons) and another identical paper (intended as an alias summons) had been delivered to the marshal within the statutory limit but service was after such limit. On January 15, 1937, the court entered an order sustaining the motion of Hecht to dismiss and dismissing the action as to Hecht1 and on January 21, 1937, amended that'order by including therein a denial of plaintiff’s motion to amend. From these two orders, plaintiff brings this appeal. Appellant presents here three issues: (I) the action was begun within the above applicable statutory limitations; (II) appellee has waived any insufficiency of summons by general appearance; (III) the motion to amend the original and alias summons should have been sustained.
I. Commencement of the Action.
Section 610(b) of the Revenue Act of 1928, 45 Stat. 791, 875, 26 U.S'.C.A. § 1646(b), requires suits to recover refund of income taxes' to be “begun” within two years after making the refund.
The Conformity Act, 28 U.S.C.A. § 724, requires the existing state “practice, pleadings, and forms and modes of proceeding” to be followed in law cases, and this provision includes the method of bringing actions and the forms of summons. Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 42 L.Ed. 602; United States v. Van Dusen, 8 Cir., 78 F.2d 121.
The pertinent Iowa statutes are sections 11012 and 11055, Code of Iowa, 1927. Section 11012 deals with “Commencement of action” and provides for service by the sheriff or ‘by “another person” and provides that “commencement of the action” shall be “the delivery of the original notice to the sheriff” when service is by the sheriff or “the actual service of that notice” where service is by another than the sheriff.
Section 110-55 deals with “Original Notice.” It declares that an “action in a court of record shall be commenced by serving the defendant with a notice,” the contents of which are prescribed therein. The section does not state whether the above-quoted portion refers only to service by other than the sheriff or not. However, the quoted portion can be recon[924]*924ciled with section 11012 by regarding it as referring in this respect only to instances where service is other than by the sheriff. Any other construction would create a conflict between the two sections which, of course, should be avoided if possible. There is another reason why, with this character of issue, section 11012 should be held applicable here. That section is contained in chapter 487 entitled “Limitations of Actions” while section 11055 is contained in chapter 489 entitled “Manner of Commencing Actions.” The issue here is whether this action is barred by limitation, therefore, if the two sections are in conflict, it would seem that 11012 should prevail here because it deals with commencement of actions for purposes of limitations. The statute is so construed by the Supreme Court of Iowa. Fernekes v. Case, 75 Iowa 152, 39 N.W. 238; Phinney v. Donahue, 67 Iowa 192, 25 N.W. 126.
The service here was by a deputy marshal which is the equivalent to service by a sheriff. Hence, section 11012 applies and this action was or would be commenced by delivery of an original notice— here a summons—to the marshal. This delivery was, concededly, within the two-year period under section 610(b) of the Revenue Act 1928.
The controversy here, however, is not so much over the date of delivery or of service. It is whether the paper delivered to the marshal was so fatally defective as a summons that it failed as such. Obviously, a paper delivered to the marshal for the purpose of bringing a party into court must contain the necessary requisites.
Section 777 of title 28, U.S.C.A., provides that “No summons ^ * * shall be abated, arrested, quashed, or reversed for any defect or want of form.” Obviously, this provision does not extend to defect or want of substance. While this statute prevails over state law and is without the Conformity Act (Mexican Central Ry. Co. v. Duthie, 189 U.S. 76, 78, 23 S.Ct. 610, 47 L.Ed. 715; Henderson v. Louisville & N. R. Co., 123 U.S. 61, 64, 65, 8 S.Ct. 60, 31 L.Ed. 92; Howe v. Haterius, 8 Cir., 66 F.2d 835, 837; In re Griggs, 8 Cir., 233 F. 243, 244), yet, by its very terms, it does not extend to substantial defects. Therefore, the question here (as to section 777) is whether the defects of the summons here are merely as to form or as to substance. That matter is to be determined by the state law under the Conformity Act (United States v. Van Dusen, 8 Cir., 78 F.2d 121) unless there is a governing rule of court which is valid. Boston & M. R. R. v. Gokey, 210 U.S. 155, 28 S.Ct. 657, 52 L.Ed. 1002; Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 42 L.Ed. 602; United States v. Van Dusen, 8 Cir., 78 F.2d 121, 123. First we will examine the state law and then a rule of court here cited.
Section 11055, Code Iowa 1927, sets forth the contents of an “original notice” (summons). They are as follows: “a notice, signed by the plaintiff or his attorney, informing him of the name of the plaintiff, that a petition is, or on or before the date named therein will be, filed in the office of the clerk of the court wherein action is brought, naming it, and stating in general terms the cause or causes thereof, and if it is for money, the amount thereof, and that unless he appears thereto and defends before noon of the second day of the term at which defendant is required to appear, naming it, his default will be entered and judgment or decree rendered against him thereon.”
This form of summons is applicable where service is made by a sheriff (Cummings v. Landes, 140 Iowa 80, 117 N.W. 22, 24; Hoitt v. Skinner, 99 Iowa 360, 68 N.W. 788, 789; Fernekes v. Case, 75 Iowa 152, 39 N.W. 238), therefore, applicable here where service was made by a deputy marshal.
The portions of the original and of the alias summons here pertinent are identical and are as follows:
“To the Marshal of the Southern District of Iowa—Greeting:
“You Are Hereby Commanded, That you summon G. Watson French, F. H. French, J. L. Hecht, Marion M. French, Anna E. French, and Francis H. French, Executor and Trustee of the Estate of Nathaniel French, deceased late of your District, if they may be found therein, so that they be and appear before the United States District Court for the Southern District of Iowa, at Davenport, Iowa, on the 27th day of October, 1931 to answer to a complaint filed by the United States of America.”
Appellee attacks the sufficiency of this paper as a summons upon ten grounds, each being a claimed fatal defect. As. to [925]*925seven of these grounds, the statements in the paper are sufficient answer and we dismiss such from further consideration. The three remaining are that (a) the summons was not addressed to the defendant; (b) the summons did not state the cause or causes of action or the amount of money claimed; and (c) the summons did not specify the consequences of a failure on the part of the defendant to appear and defend.
It seems clear that the summons lacked each of the above three things. It is clear that section 11055 requires the “notice” (summons) to state “in general terms the cause or causes thereof, and if it is for money [this action is], the amount thereof, and that unless he appears thereto and defends * * * his default will be entered and judgment or decree rendered against him thereon.” There is no express requirement that the “notice” shall be directed to the defendant but it is difficult to conceive of a proper notice which would not convey such information in some form. We may, however, lay aside the claimed defect as to direction of the summons to the defendant without examination because it is clear that the summons is fatally defective since there is no description whatsoever therein as to the “cau'se or causes” of action, nor is there any statement whatsoever of the consequences of a failure to appear and defend, both as required by section 11055.
In Farley v. Carter, 222 Iowa 92, 269 N.W. 34, 35, in considering the requirement as to statement of cause of action and in speaking of this section, the court said: “This necessarily implies the nature or subject of the action, as whether it is founded upon a note, an open account, for trespass, for slander, or for the recovery of real estate, etc.” The court there held such a notice to be “fatally defective.” 269 N.W. 34, at page 36. Also see Sutton v. Rhodes, 205 Iowa 227, 217 N.W. 626; Blain v. Dean, 160 Iowa 708, 142 N.W. 418, 422; Moody v. Taylor, 12 Iowa 71.
Also, as to statement in a summons of the consequences of failing to appear and defend, the Farley Case is decisive. On page 34 of 269 N.W., the court states: “Among the specifications required of an original notice by section 11055 of the Code are: * * * (4) ‘That unless he appears * * * and defends before noon of the second day of the term, * * * judgment * * * [will be] rendered against him.’ ” On page 35 of 269 N.W., the court states:
“Each of the specific requisites of the statute is of equal rank with the others, and a failure to include, any one is as fatal as the failure to include another. Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919.
“In Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919, 920, in referring to the failure to comply with the specific requisites of the statute, this court said: ‘The specific requisites of the statute are not to be wholly ignored. The statute provides for a certain degree of formality as requisite to confer jurisdiction. For instance, an original notice must be in writing. Oral notice, however emphatic or frequent, will confer no jurisdiction. If the writing is essential to the jurisdictional power of the notice, then it would seem equally as essential that the statutory requisites should be incorporated in such writing. We are of opinion that the defects in this notice cut so deeply as to destroy its essential character as a statutory notice and that for such reason it should be deemed not simply defective, but wholly void.’ ” Also see United States v. Van Dusen, 8 Cir., 78 F.2d 121, this court, for a similar view concerning a like provision in the Minnesota statutes.
Having examined the state law and determined that the summons and alias summons were fatally defective thereunder, we next consider the effect of a rule of the District Court upon which appellant relies. So far as here pertinent, that rule is as follows: “Actions at law shall be commenced by filing a petition with the clerk upon which a summons shall be issued directed to the defendant, informing him of the name of the plaintiff, that a petition has been filed in the office of the clerk of the court wherein the action is brought, naming it. Except as otherwise provided in these rules, and except as provided for in the laws of the United States in force at the time action is sought to be taken in this court, pleadings’ and practice and procedure, both before and after judgment, shall be as then prescribed in the laws of the State of Iowa.”
We are saved the labor of discussing and determining how far rules of United States District Courts may differ from state practice or whether this particular rule falls on one side or the other of the permissible line of difference. This matter is governed by the recent case of United [926]*926States v. Van Dusen, 8 Cir., 78 F.2d 121, in this court. There a summons issued from the District Court of the District of Minnesota was attacked as fatally defective. The Minnesota statute required, among other things, that a summons be directed to the defendant and that it contain a statement of the consequences of failure to appear and defend. The District Court had a rule requiring—as in the rule here—a summons directed to the defendant. In that case, we held the failure of the summons to state the consequences of failure to appear and defend was a fatal deviation from the rule. In this respect, the summons in that case and in this are identical, as are also the rules involved there and here.
Appellant contends, also, that this form of summons has been in use for years and that such usage is sufficient to validate it. Two cases are cited to support this position. They are City of St. Charles v. Stookey, 8 Cir., 154 F. 772, this court, certiorari denied 208 U.S. 617, 28 S.Ct. 569, 52 L.Ed. 647, and Elson v. Town of Waterford, C.C.D. of Conn., 135 F. 247. Neither of these cases has any bearing upon the point to which they are here cited. Nor is there merit in this contention. It is true that a rule of court does not have to be written and formally adopted but may be established by long-continued usage. Payne v. Garth, 8 Cir., 285 F. 301, 309. However, the trouble here is that there is a written and formally adopted rule. Obviously, such a rule cannot be nullified by a custom in procedure. This record affirmatively reveals that the trouble here has not been caused by a form of summons adopted or approved by the District Court which promulgated this rule but that it is a form worked out by the Department of Justice (some years ago) and distributed by it to clerks of District Courts for their use. Apparently, this was done without consideration of differences in state statutes or in the rules of the various districts.
Our conclusion is that both the original summons and the alias summons were fatally defective and that this action was not begun by the delivery of such to the marshal.
II. Waiver by General Appearance.
Several months after expiration of the two-year statutory limitation, appellee (by attorney) joined in a stipulation for continuance of the case. This was a general appearance. Appellant contends that such general appearance was a waiver of defects in the summons and such waiver results in perfecting the summons as of the date of delivery to the marshal. It is very true that a general appearance brings the party into the litigation as effectively as though there were no defects in summons or service. Not infrequently this has been referred to as a waiver of defects in the summons or the service. But such expressions are to be taken only as meaning that the party cannot, after a general appearance, escape the jurisdiction of the court because of a defect in the process. It does not relate back and cure such defects for all purposes but takes effect generally only as of the time of the general appearance. Ewell v. Chicago & N. W. Ry. Co., C.C.S.D.Iowa, 29 F. 57, 58; 6 C.J.S. Appear anees, p. 44, § 14a, and -numerous cases cited in notes thereto. The general appearance here in no way affected the right of appellee to thereafter plead the limitation. It simply put him in court from then on for all purposes. The same result would follow had no process ever been issued but he had made his voluntary general appearance upon the day he did here.
III. Amendment of the Summons.
Appellant contends the court erred in denying its motion to amend the summons long after the statute of limitations had run. Obviously, this amendment was intended to relate back and cure the summons as of the date of issue or delivery to the marshal. It could not otherwise have benefited appellant because appellee was then in court through his general appearance. The court properly denied the motion.
Appellant relies upon sections 767 and 777 of title 28, U.S.C.A. Section 767 allows amendments of process where the “amendment will not injure the party against whom such process issues.” Clearly, to allow the amendment here and give it an effect of curing the process as of issue or delivery to the marshal would seriously injure appellee by depriving him of a complete bar to the action. Section 777 relates, only to defects in form of summons to such amendments as the court may in its discretion allow. As shown above, the defects here were not merely of form, but substantial. The court having exercised [927]*927its discretion against allowing the amendment we cannot say such exercise was abused when we consider the effect of the proposed amendment upon appellee. The judgment is affirmed.