Concurring.
In concurring in the conclusion reached in this case, I think it best that I state the specific grounds on which I base my concurrence. Section 4456, Revised Statutes, was taken from the California code (Deering’s Code of Civil Procedure, section 670) and adopted literally into our code of laws. At the time of and prior to its adoption here, the supreme court of California held that the affidavit and order for publication of summons were not a part of the judgment-roll and had no place therein. (See cases in main opinion.) Under the general rule governing the construction of a statute adopted from another state where it had already been construed, I feel constrained to-concur in the opinion of Justice Sullivan. In Stein v. Morrison, 9 Idaho, 426, 75 Pac. 246, this court held that “When a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or constitution, it is to be presumed that it was taken in view of such judicial interpretation, and with the purpose of adopting the language as the same had been interpreted and construed by the courts-of the state from which it was taken. ’ ’ Personally, I do not think the statute even meant what the California court has said it meant. When the legislature said that “in case a. complaint be not answered by any defendant,” the judgment-roll shall contain “the summons with the affidavit or proof of service,” it never, in my judgment, intended that *733the affidavits of a printer and of mailing should constitute “proof of service.” Service may be made by the sheriff and his certificate to that effect indorsed on the summons is “proof of service” (Rev. Stats., sec. 4143), or it may be made by “any person over the age of eighteen years not a party to the action,” but in the latter case, proof of service is made by affidavit. (Sec. 4143.) This is proof of personal service. On the other hand, constructive service cannot be made until certain conditions precedent are shown to exist; a printer’s affidavit alone in the judgment-roll is no proof at all that the ease is one where constructive service might be made, and therefore falls short of “proof of service.” In such case, it seems to me that in any reasonable view of the law, the affidavit and order for publication are necessary and essential to constitute “proof of service’” in this unusual and extraordinary manner, where a defendant is at most only given a constructive notice. I yield, however, my personal views to the construction that has been placed on this statute for so many years, but I now voice the hope that the legislature may so amend section 4456, Revised Statutes, as to specifically require the affidavit and order for publication to hereafter be made a part of the judgment-roll in eases where the defendant makes no appearance.
(January 22, 1908.)