ON REHEARING.
MILLS v. SMILEY.
4. In case of service by publication upon a nonresident or absent defendant where his place of residence is known, the order must direct a copy of the summons and complaint to be mailed to such defendant at his place of residence. 5. The return of an officer showing that he could not find a defendant in his county seven months prior to the application for the order of publication is not evidence of the absence of the defendant at the time of such application, and cannot be properly considered in making the order. 6. In order to acquire jurisdiction by publication of summons, all the statutory requirements authorizing such service must receive a substantial compliance. (Syllabus by the court.) APPEAL from the District Court of the Second Judicial District, in and for the County of Latah. Honorable E. C. Steele, Judge. From an order denying a motion to vacate and set aside a writ of assistance defendant appeals. Eeversed. A. J. Green and S. S. Denning, for Appellant. Forney & Moore, for Eespondent. AILSHIE, J.-After the filing of the opinion in this case the appellant presented a petition for a rehearing, urging strongly the want of jurisdiction in the lower court to issue the writ of assistance complained of in the case. Hpon that petition a rehearing was granted and the case was again argued at the March term of this court. Prior to the last argument the respondent filed another motion to dismiss the appeal based .on the grounds that notice of appeal was not served upon A. L. Mills, Pauline E. Maupin, Samuel Geer, Thomas M. Morgan, Eaehael Morgan, M. J. Shields Company, a corporation, C. F. Adams and the Security Savings and Trust Company, or either of them. All of these parties were parties to the original foreclosure proceedings. It is claimed that upon the authority of Titiman v. Alamance Min. Co., ante, p. 240, 74 Pac. 529, and Baker v. Drews, ante, p. 276, 74 Pac. 1130, decided by 'this court, the appeal should be dismissed. This ease does not fall within the rule announced in those cases, for the reason that this appeal is not taken from the judgment of- foreclosure *327entered in the original case, but is rather an appeal questioning the authority of the court to issue a writ of assistance in favor of the purchaser at an execution sale. Whatever conclusion we may reach on this appeal, we cannot “reverse, affirm or modify” the judgment entered in the foreclosure case. This controversy arises solely between the purchaser and the party in possession, and our decision upon this appeal can only “reverse, affirm or modify the order of judgment” of the court in granting and refusing to vacate the writ of assistance. The only parties to that writ, or who will be, within the meaning of this statute, affected by the decision on this appeal are Thorp and Smiley. The motion to dismiss the appeal will therefore be denied.
Upon the reargument of this case much stress has been placed on the insufficiency of the judgment-roll in the original case to show jurisdiction in the court to render the judgment and decree upon which the sale to Thorp was made and for the enforcement of the terms of which sale the writ was issued. At the first hearing our attention was directed principally to appellant’s right to appeal in such case, and the application of the .provisions of section 4520 of the Eevised Statutes to a party ■in possession holding an unrecorded deed at the time suit is commenced, and therefore the question of jurisdiction was not considered by us in the former opinion.
Upon the hearing before the district judge on the motion to vacate and set aside the writ of assistance, the judge had before him the judgment-roll in the original foreclosure proceeding, the petition for writ of assistance, the writ of assistance, notice of motion, motion and the affidavit of A. J. Green, together with the deed of conveyance from Thomas M. Morgan and wife to the appellant Smiley, and the record on appeal contains all the papers used upon the hearing in the lower court. For the purpose of ascertaining whether or not the writ of assistance was properly issued, we will look to the record made in the foreclosure suit to see ifithe court had obtained jurisdiction to enter the decree therein. (Vermont Loan etc. Co. v. McGregor, 5 Idaho, 510, 51 Pac. 104.)
*328Much of the history of this case is recited in the original opinion by Mr. Justice Stoekslager, and we therefore recite only such further facts as are necessary to a complete understanding of the question here discussed. Personal service of summons was made only upon M. J. Shields Co., a corporation, and Samuel Geer, and the sheriff after certifying to the service of summons upon these two parties, further says in his return: “I hereby certify that I received the within summons on the twenty-fourth day of September, A. D. 1896, and after diligent search and due inquiry, I have failed to find the within-named defendants, Pauline E. Maupin, Thomas M. Morgan, Rachael Morgan, C. E. Adams and Security Savings and Trust Company, a corporation, in Latah county, state of Idaho, being five of the defendants named in the said summons.”
This return was made on the sixteenth day of October, 1896, and on the twenty-seventh day of May, 1897, an affidavit for publication of summons was made and filed as follows:
“Edwin T. Coman, being first duly sworn upon oath,- deposes and says that he is agent and one of the attorneys for the plaintiff in the above-entitled action; that due and diligent search has been made for the defendants Pauline E. Maupin, Thomas M. Morgan, Richael Morgan, C. E. Adams and the Security Savings and Trust Company of Portland, Oregon, a corporation, and that said defendants cannot be found within the state of Idaho.
“EDWIN T. COMAN.”
And on the same day that the affidavit was made the district- judge entered his order for publication of summons as folJows:
“This cause coming on to be heard this seventeenth day of May, 1897, before the Honorable W. G. Piper, judge of the above-entitled court. The court having before it the files in the cause including the original ^summons with the sheriff’s return thereon, and the affidavit of Edwin T. Coman, one of the attorneys, for the plaintiff, and it appearing from the files and affidavit that the defendants Pauline E. Maupin, Thomas M. Morgan, Rachael Morgan, C. E. Adams, and the Security Sav*329ings and Trust Company are nonresidents of the state of Idaho, and that they cannot be found after due and diligent search within the state of Idaho, and therefore it is considered and ordered that said defendants Pauline E. Maupin, Thomas M. Morgan, Rachael Morgan, C. F. Adams and the Security Savings and Trust Company be served by publication of said summons herein in the ‘Moscow Mirror/ a paper published in the city of Moscow for once each week for six consecutive weeks.
“Done in open court this seventeenth day of May, 1897.
“W. G. PIPER,
“Presiding Judge.”
The summons was thereafter published in the “Mirror,” of Moscow, and proof thereof was made and filed on the seventh day of December, 1897. None of the defendants appeared and default was entered against each and all of them, and judgment thereafter was rendered and entered and proceedings had as set forth in the original opinion in this ease.
By the provisions of our statute, constructive service may be made in certain eases upon the happening of the contingencies therein enumerated. Section 4145, Revised Statutes, provides : “When the person on whom the service is to be made resides out of the territory, or has departed from the territory, or cannot, after due diligence, he found within the territory, or conceals himself to avoid the service of summons, or is a foreign corporation having no managing or business agent, cashier, or secretary within the territory, and the fact appears by affidavit to the satisfaction of the court or a judge thereof, or a probate judge, and it also appears by such affidavit, or by the verified complaint on file that a cause of action exists against the defendant, in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or judge may make an order that the service he made by the publication of the summons.” This statute enumerates the ultimate facts which the evidence submitted to the judge by “affidavit” must enable him to find before he can make the order. This affidavit is not in the nature of a pleading, but is strictly the evidence the plaintiff is required to submit to establish the *330ultimate facts the statute demands to be found before the order of publication can be made. If, then, the affidavit submitted only states the ultimate and not the probative facts, the plaintiff, instead of the judge, would, be determining what constitutes “due diligence,” and the other facts required, and there .would be no reason or necessity for an order at all, but the affidavit alone might serve that purpose. This is neither the purpose nor intention of the statute: The law requires the plaintiff to make a showing by affidavit as to what he has done in order to obtain personal service, and what effort he has made to find the party to be served, and where such party resides, etc.; and upon such showing of facts the judge to whom it is presented will determine judicially whether or not the probative facts thus shown are sufficient to bring the plaintiff within the provisions of section 4145, supra, and entitle'him to the order. The conclusion as to “due diligence,” etc., cannot be left to the affidavit-making judgment and discretion of the plaintiff, but must be reserved to the judge. It is a legal conclusion to be 'derived from the facts as presented by the evidence, viz., the affidavit.
This statute became the.subject of judicial consideration in California at an early date, and in Ricketson v. Richardson, 26 Cal. 154, the court said: “It is not sufficient to state, generally, that after due diligence the defendant cannot be found within the state, or that the plaintiff has a good cause of action against him, or that he is a necessary party; but the acts constituting due diligence or the facts showing that he is a necessary party, should be stated. To hold that a bald repetition of the statute is sufficient, is to strip the court or judge to whom the application is made of all judicial functions and allow the party himself to determine in his own way the existence of jurisdictional facts — a practice too dangero'us to the rights of defendants to admit of judicial toleration. The ultimate facts stated in the statute are to be found, so to speak, -by the court or judge from the probatory facts, stated in the affidavit, before the order for publication can be legally entered ” .
This case has been repeatedly cited with approval by state and federal courts, as may be seen by an examination of the *331notes on the case in volume 2, Notes on California Reports, at page 407. See, also, McCracken v. Flanagan, 127 N. Y. 493, 24 Am. St. Rep. 481, 28 N. E. 385; Alderson v. Marshall, 7 Mont. 296, 16 Pac. 576; Roberts v. Roberts, 3 Colo. App. 6, 31 Pac. 941; Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445, 71 Pac. 498; Romig v. Gillett, 10 Okla. 186, 62 Pac. 805; Rue v. Quinn, 137 Cal. 651, 66 Pac. 216, 70 Pac. 732.
■ In Strode v. Strode, 6 Idaho, 67, 96 Am. St. Rep. 249, 52 Pac. 161, this court announced in the syllabus to the case and as the rule of law in this state, that: “Unless affidavits are filed showing that all of the requirements of the statute authorizing service by publication have been complied with, the court has no jurisdiction to enter judgment and decree.”
' We are aware that a somewhat different rule from that herein announced has been adopted by some courts, but we do not think it good law and cannot follow it.
‘ It will be seen from an inspection of the affidavit mádé- in this ease for publication of summons that no pretense was made at showing the residence of any of the defendants, nor was it alleged that they were nonresidents of the state, but simply charged “that said defendants cannot be found within the state of Idaho.” This was a material fact and should have been shown. In making affidavits of this kind it should appear therefrom whether the defendant is a nonresident of the state or conceals himself to avoid service, or, if a resident of the state, is absent therefrom and cannot be found. The party making the affidavit must certainly be able to state the last known place of residence of the defendant or the fact'that he has been unable to find where the defendant does actually reside. He can at least state the facts of the case. Section 4146 •of the Revised Statutes provides some of the things that the order of the judge must direct, and, among other things, says: .“In cases of publication where the residence of a nonresident •or. absent defendant is known, the court or judge must direct •a copy of the summons and complaint to he forthwith deposited in the postoffice, directed to the person to he served at his place of. residence.” It is therefore made necessary that the affidavit *332should show defendant’s place of residence, and if it cannpt, then the fact should appear that his place of residence is not known and cannot be ascertained. In this case the order for publication failed to direct the mailing of the summons and complaint; indeed, there was no information before the judge which would enable him to direct the mailing. (Rickertson v. Richardson, supra; Ligare v. California etc. R. R. Co., 76 Cal. 614, 18 Pac. 777.) It is urged by the respondent that the judge not only had the affidavit before him, but also had the sheriff’s return on the summons before him, and that from the two he might gather that the defendants were nonresidents. We do not think such inference justified, and besides the judge had no right to consider the return of the sheriff indorsed on the summons, for the reason that the return was made on the sixteenth day of October, 1896, while the affidavit for publication was not made until the seventeenth day of May, 1897, a period of seven months subsequent to the sheriff’s return. The fact that the defendants could not be found within Latah county on the sixteenth day of October, 1896, is no evidence that they could not be found therein on the seventeenth day of May, 1897. Especially would this be true had the defendants been residents of the county upon the former date, and had been only temporarily absent from the county. This alone illustrates the necessity for the affidavit showing whether or not the defendants were residents of the state.
It has been suggested by the respondent that since, according to appellant’s own contention, the defendants Maupin and Morgan and wife had parted with their legal title to the land mortgaged and had conveyed the same to the appellant, who had failed to record his conveyance, that it therefore became necessary to serve those defendants. The trouble with this argument is that it proves too much. If respondent’s theory is correct that the provisions of section 4530 of the Eevised Statutes apply to a case like this, and that it was unnecessary for the plaintiff in the foreclosure proceeding to serve the owner of the legal title who held an unrecorded deed, and that it was also unnecessary to serve his grantors who had executed the *333mortgage because they had parted with their title, they would then be left in the anomalous position of foreclosing their mortgage without serving anybody.
It is clear to us that they were under the necessity of either serving the holders of the record title or the holders of the legal title, or both. In this ease they did neither. The service by publication upon the defendant Maupin and those defendants through whom the legal title passed from Maupin to Smiley was void and ineffectual for any purpose, and no pretense is made at ever having served Smiley, in whom the legal title had been vested ever since February 2,1894.
Our examination of the record in this case convinces us that the court was without jurisdiction to enter the judgment and decree under which the sale to Thorp was made, and the court was therefore without jurisdiction to issue the writ of assistance complained of in this case. (Vermont Loan & Trust Co. v. McGregor, supra.) The order appealed from is vacated and the cause is remanded, with instructions to the trial court to vacate and set aside the writ of assistance in this ease.
Each party to pay his own costs.
Sullivan, C. J., and Stockslager, J., concur.