If the time limits prescribed in the preceding article have not been observed, the following rules shall apply:
1° In the event that the party summoned does not appear, the summons must be declared null by the court;
2° In the event that the party summoned does appear, the summons is not null but the court must, at the request of the party summoned, order referral to a subsequent hearing.
This application must be made before any defence on the merits, as stated in article 385.