We have given to the petition for rehearing in this case the careful consideration which was due to the importance of the question involved, and the earnestness with which a rehearing has been requested by eminent counsel has induced us to review carefully the opinions heretofore delivered; but we see no reason to change or modify the conclusions already announced, nor does the petition for rehearing present any new phase of the legal propositions involved in the case.
We adhere to the following propositions, to wit:
1st—That the efficiency of the service must be decided upon the judgment roll.
2d—That the affidavit and the order of the Judge, directing the publication, constitute no part of the judgment roll, which, under section two hundred and three of the Practice Act, is to consist, in case the complaint be not answered by any defendant, of “ the summons with the affidavit or proof of service, and the complaint with a memorandum indorsed upon the complaint that the default of the defendant in not answering was entered, and a copy of the judgment.”
3d—That the order of the Judge directing the publication and the affidavit on which it was founded constitute no part of the proof of service by publication to be annexed to and forming a part of the judgment roll. The statute distinctly declares that in case of service by publication, the proof of service shall consist of “ the affidavit of the printer, or his foreman or principal cleric, showing the same, and an affidavit of a deposit of a copy of the summons in the Post Office, if the same shall have been deposited.” (Practice *430Act, Sec. 33.) However defective the statute may be as to proof of service in such cases, it is not our province, by a system of judicial legislation, to supply its omissions. That this provision is faulty and incomplete is quite obvious, but its defects must be cured by the Legislature and not by the Courts.
Some stress is laid by counsel on the phrase “ showing the same ” in this section. If we comprehend the argument aright, it is that from this phrase it is to be inferred that the order of the Judge must, of necessity, constitute a part of the proof of service, and therefore go into the judgment roll, because otherwise the phrase “ showing the same ” would be absurd and meaningless. But it is apparent from the context as well as from the subject matter, that this phrase was intended only to require that the affidavit should show in what paper the publication was made, between what dates, and how often. The counsel insists that this, of itself, would show no service. If this be so, it is the vice of the statute, which has explicitly declared that it shall constitute the proof of service. We have no power to require other proofs than those the statute specifies.
4th—That unless the record shows to the contrary, it will be presumed that a Court of general jurisdiction had acquired the necessary jurisdiction over the parties, to support its judgment; and in this respect the record cannot be impeached in a collateral proceeding by proof aliunde.
5th—That when the judgment, as in this case, recites the fact that the defendants have been duly served with process, it is a direct adjudication by the Court upon the point, and is as conclusive upon the parties as any other fact decided in the cause, provided it does not appear affirmatively, from other portions of the record, that the recital is untrue. As, for example, if the judgment recites a due service of process, and refers, on its face, for proof of the service to the Sheriff’s return on a particular summons on file in the case, as part of the judgment roll, if it appears, on inspecting the return, *431that the service is bad, the recital in the judgment would, in that case, appear affirmatively from the record to be untrue, and the judgment would be void. But if the judgment for proof of service refers generally to a paper or papers on file, or to a summons and Sheriff’s return thereon without specifying any particular paper, summons or return, and if there be found on file papers showing a defective and void service, and nothing further appears, the law to support the judgment would presume that the Court had other sufficient proof of service than that which remains on file; and it would not in that case appear affirmatively from the record that the recitals in the judgment were untrue. The recitals would therefore be conclusive proof of service. But if the judgment recites a due service of process without specifying how the service was made or referring to any paper as proof of it, the recital is conclusive on the parties in a collateral proceeding; unless, as before stated, it should affirmatively appear in some manner from other portions of the record that the recital was untrue. It is objected, however, by counsel, that such recitals have no proper place in the judgment, and ought not for that reason to be deemed conclusive, nor even prima fade proof of service. But, on examining the course of .proceedings in Courts of equity in England and in most of the States of the Union, we find the usual practice has been, in entering decrees upon bills taken pro confesso, to recite the fact of service, and that the defendant is in default. But if this were not the-usual practice, the recital in the judgment of the fact of service can in no manner impair its effect as an adjudication on the point. It is as conclusive in this form as if stated in a separate, interlocutory judgment, adjudicating only the fact of service.
We may remark, in conclusion, that if upon reason and authority, the questions decided in this cause were left in such extreme doubt that we might well incline to the one side or the other, considerations of public policy would impel us to solve the doubt in such manner as to promote the *432repose of titles held under judicial sales, rather than by technical niceties to overthrow them.
Rehearing denied.
[Note.—The foregoing opinion was rendered at the January Term, 1868.]