(concurring). The sole question presented in this case is whether the trial court erred in dismissing plaintiff’s action.
Under our laws jurisdiction in an action is acquired by the service of a summons upon the defendant. Two modes of service are provided: Personal service, and service by publication. The. manner in which personal service must be made is prescribed by § 7426, Comp. Laws 1913; and the conditions under which service may be made by publication are enumerated in § 7428, Comp. Laws 1913. The latter section provides:
*17“Service of the summons in an action may be made on any defendant by publication thereof upon filing a verified complaint therein with the clerk of the district court of the county in which the action is commenced, setting forth a cause of action in favor of the plaintiff and against the defendant, and also filing an affidavit stating the place of defendant’s residence, if known to the affiant, and if not known, stating that fact, and further stating:
“1. That the defendant is not a resident of this state; or
“2. That the defendant is a foreign corporation, joint stock company, or association and has no agent or person in this state upon whom service may be made under the provisions of § 7426; or
“3. That personal service cannot be made on such defendant within this state to the best knowledge, information, and belief of the person making such affidavit, and in cases arising under this subdivision the affidavit shall be acompanied by the return of the sheriff of the county in which the action is brought, stating that after diligent inquiry for the purpose of serving such summons he is unable to make personal service thereof upon such defendant.” Comp. Laws 1913, § 7428.
Section 7430, Comp. Laws 1913, provides that "a copy of the summons and complaint must, within ten days after the first publication of the summons, be deposited in some postoffice in this state, postage prepaid, and directed to the defendant to be served, at his place of residence, unless the affidavit for publication states that the residence of the defendant is unknown.”
Section 7431, Comp. Laws 1913, provides: “After the affidavit for publication and the complaint in the action are filed, personal service of the summons and complaint upon the defendant out of the state shall be equivalent to and have the same force and effect as the publication and mailing provided for in this chapter.”
Section 7539, Comp. Laws 1913, provides that in actions wherein a warrant of attachment is issued and properly seized thereunder, “an action shall be deemed commenced when the summons is issued, but personal service of such summons must be made, or publication thereof commenced within sixty days after the issuance of the warrant of attachment.”
It is undisputed that the only service made upon the defendant in *18this case was that a copy of the summons was handed to him within the state of Wisconsin. He did not receive a copy of the complaint.
Appellant contends that § 7539, Comp. Laws 1913, does not require the service of a copy of the complaint in a case where personal service of the summons is obtained out of the state. In my opinion this contention is wholly untenable. Section 7539 does not purport to define “personal service” or “service by publication,” or to fix any other meaning upon those terms than that which is ascribed to them in other provisions of our laws. The section merely recognizes the fact that our laws provide for two modes of service, to wit: Personal service and service by publication. When it refers to personal service, it doubtless has reference to the service prescribed by § 7426, Comp. Laws 1913, which latter section by its express terms declares that “service made in any of the modes provided in this section shall be taken and held to be personal serviceService by the delivery of the summons and complaint to the defendant, personally, out of the state is simply a substitute for service by publication. H. L. Spencer Co. v. Koell, 91 Minn. 226, 97 N. W. 974; 19 Enc. Pl. & Pr. 610; 32 Cyc. 489.
It will be noted that our laws expressly require that when service is made out of the state, a copy of the complaint, as well as of the summons, must be served (§ 7431, supra); and that even in cases where the summons is actually published, a copy of the summons and complaint must be mailed to the defendant, if his residence is known. § 7430, supra. The object of these statutes is apparent. It was desired, in all cases where it was possible to do so, to give the defendant the information which the complaint necessarily would impart to him.
It is well settled that statutes providing for service of process upon persons who cannot be personally served within the jurisdiction must be strictly pursued in order to confer jurisdiction upon the court. 17 Enc. Pl. & Pr. 45; 19 Enc. Pl. & Pr. 611.
In Roberts v. Enderlin Invest. Co. 21 N. D. 594, 599, 132 N. W. 145, this court said: “Service of summons by publication is purely of statutory creation, and is effective only as the statute makes it so. Whatever the statute prescribes as a prerequisite condition cannot be dispensed with, and a failure to strictly comply with the provisions of the statute renders the attempted service fatally defective. When a proceeding is commenced to obtain service of the summons by publi*19cation, the defendant has a right to examine the records in the ease and to govern his conduct accordingly. It is therefore necessary that proof of the right, under the statute, to make service of the summons hy publication, should appear in the files and records of the action before publication of the summons is commenced.”
In that action the court, also, had occasion to construe § 7539, supra. The court held that by virtue of that section “the lien of an attachment lapses and ceases to exist, unless the summons is served personally or the publication thereof commenced within sixty days after the issuance of the warrant of attachment.” 21 N. D. 601.
I therefore agree with my associates that there was no service of the summons in this action in the manner and within the time provided by law, and that the tiral court ruled correctly when it ordered that the action be dismissed.