(dissenting):
I do not think that a purchaser should be compelled to accept this title. The order of publication concededly fails to comply with section 440 of the Code of Civil Procedure. That section is mandatory and provides, that the "order must contain a direction that on or before the day of the first.publication the plaintifE deposit in a specified post office one or more sets of copies of the summons, com-' plaint and order, each contained in a securely closed postpaid wrapper, directed to the defendant at a place specified in the order.
This, is hot an order of the court, but an order of a judge, and it has been many times held that the order, to give to the' court jurisdiction in the action,, must strictly comply with this mandatory provision of the statute. The summons was published under this order, and the sole jurisdiction óf the court to subsequently decree' a foreclosure of the mortgage and .a sale of the defendant’s-property who was sought to be served under this order, is the publication- of the summons as- 'therein directed. This defendant is not now before the court and the judgment in this action would not be binding upon her. The purchaser, was entitled, to a marketable title, free from serious doubt. I do not think that a title based Upon a .judgment entered in an action where the summons was served upon the owner-of the equity of redemption pursuant to an order which fails to comply with this section of the Code is a marketable title. The order amending the order of publication entered long after, the *585■judgment was entered, not made by the judge who signed the original order, Í do not think cures the defect if the failure of the original order of publication was insufficient to give the court jurisdiction iii the action. .
I think, therefore, that as the plaintiff should not be compelled to take this-'title, judgment should be directed for the plaintiff-upon this submission.
Judgment ordered for defendant, with costs. Settle order on notice..