ALLEN, J. [1] The first three objections of the defendant may be disposed of with but little discussion. There is no limitation in the statutes as to the time of issuing a summons, and there is no analogy between the performance of this duty and the taking of a deposition, as the defendant contends, which cannot be taken except by consent, during a. term for the trial of the action, because the party cannot be before the court and the commissioner at the same time. The summons may issue at any time, but the return day is dependent on the time of service. Rev. § 434 et seq.