(concurring). I agree with the conclusion, and in the main with the views, expressed in the opinion of Judge Fuller; it being understood throughout that defendant King never appeared in any manner; and that respondent’s appearance was expressly limited to the specific purpose of the motions hereinafter noticed. ' Judge Corson thinks the decision ought to be put upon the ground of surprise to Milliken in the entering of the judgment while he had a motion pending to set aside the summons and dismiss the action, and not upon the ground that there was no adequate proof of service of the summons. To me there seem at least two good reasons for not putting it uponThat:ground: First, there is nothing in the abstract to show that the morion was made upon that ground; and, second, there is nothing to show, except by remote inference, that he was surprised. He does not say or intimate that he was. The ground of the motion upon which the judgment was set aside was primarily, as stated in the notice, “that there is no proof of service of summons herein. ” If the court acted upon this ground, no judicial discretion was involved. The court simply accorded Milliken a strict legal right. We are to review the action of the court, and with nothing in the whole record to intimate that discretion was involved, or that the decision was the result of its exercise, but everything, as it seems to me, that the court simply passed upon the absolute legal rights of the paities. Upon the showing of facts made it does not appear tocme allowable to assume that the trial court did what it was not asked to do, — exercising a discretion which was not invoked, — and decided the motion upon a ground not mentioned in the application or notice. Perhaps it might have been done so, but, if it had, its order would naturally have been different from the one it did make, and would have opened up the default, and fixedThe rights of the parties as to further pleading. Another fact which to me argues against the theory that this judgment/was vacated, under section 4939, Comp. Laws, on account of surprise, is the absence of a proposed an*37swer by Milliken, or an affidavit of merits. If he had made this application under said section 4939, he would ordinarily have asked, in connection therewith, to be made a party defendant, and allowed to answer, and the order of the court would have gone further than simply to vacate the judgment. I think the record shows almost conclusively that the motion was made and decided upon the ground named, and that to now treat the decision as one made upon and resting in the discretion of the court would not be to review the action which it did take, but to express our views upon what it might have done.
I concur in the views of the opinion as to the legal effect of plaintiff’s affidavit to prove service of the summons. Plaintiff’s affidavit was not made or offered to show that proper or any proof of service had been made and lost, and then to show the recitals or contents of such lost proof. No claim was or is made that there had ever been any other return or proof of service. This affidavit of plaintiff was the original and only evidence offered to the court to show that the summons had ever been served on King. Conceding that extraordinary and extremely exceptional circumstances might occur which would make such affidavit legal and adequate proof of service, notwithstanding that the statute says the proof shall be made by the party making the service, such evidence of service could never be used primarily, but only when its use as secondary evidence is justified by a satisfactory showing of its necessity. No such showing was attempted in this case. There was no intimation that Handlin, who was said to have served the summons, was not still in Beadwood, and perfectly available to make proof of what he did. Under such condition’s, to allow the plaintiff himself to make the original and only proof of service, would be to ignore the express requirement of the statute, and that, too, without the pretense of an excuse for it. To hold that this judgment was not subject to be set aside on this ground must mean that, in the opinion of the court so holding, any plaintiff may, by his own affidavit in the first instance, *38make proof of the service of his summons, and that upon the making of such affidavit the court may take and exercise jurisdiction over a defendant so said to have been served, and pronounce judgment against him. This, it seems to me, would be a palpable contempt of the statute. It is true that in the New York cases cited by Judge Corson the court declined to hold a judgment void for want of jurisdiction because the summons was served by the plaintiff. We think, however, that courts generally have held that service of process by the plaintiff in the action does not give jurisdiction. See the following cases, some of them under statutes like ours, and others' under the common-law rule, in some of which the New York cases referred to are expressly disapproved: Toenniges v. Drake, 7 Colo. 471, 4 Pac. 790; Morton v. Crane, 30 Mich. 526; Dyson v. Baker, 54 Miss. 24; Knott v. Jarboe, 1 Metc. (Ky.) 504; Filkins v. O’Sullivan, 79 Ill. 524; Boykin v. Edwards, 21 Ala. 261; Singletary v. Carter, 1 Bailey, 467. The same doctrine was recognized and enforced in Collsbitsch v. Ranibon (Iowa) 51 N. W. 48. The statute of that state provided that notice of the taking of a deposition might be served by any one qualified to serve original process in the case, and also, like ours, that process might be served by one not a party. The sheriff was á party, and the notice was served by a deputy sheriff. The court held such service futile, and suppressed the deposition. In Lockwood v. Adams, 11 Ohio, 398, the proof of the service of the notice under which a deposition was taken was the affidavit of a party. The court held the proof incompetent, and the deposition inadmissible. Where, as in this case, a judgment is taken on default, the proof of the service of the summons is as necessary and essential a part of the judgment roll as the summons itself. Section 5103, Comp. Laws. It therefore appeared on the face of the roll, as I think, that there was no legal proof that the summons had been served on defendant King, and therefore nothing to show- the court that it had jurisdiction over him when it gave judgment .against him. On *39this fact being called to'the attention of the court in any manner, the judgment should have been set aside.
It seems this respondent had, prior to the entry of the judgment, made a motion, which was then pending, to dismiss the action, for the reason, among others, “that there is no proper proof nor service of the so-called ‘summons’ and ‘complaint, ’ or either of them. ” With this motion undecided, the plaintiff took his judgment by default. Respondent then made his motion to vacate such judgment, reciting in his motion the very same ground as in his former undecided motion, to-wit, no proof of service, and consequent want of jurisdiction in the court, with no intimation in any paper brought to our notice that he would rely at all upon surprise, or the circumstances under which the judgment was entered, for the relief he asked. This persistent adherence to this ground, with no suggestion of any other, assures me that that was the ground upon which the motion was made, and the ground upon'which it was decided; and I think the decision on that ground was right. Whether upon proper proof of the service .of the summons, the court might reinstate the judgment, is a question not before us.