On petition por a rehearing.
Downey, J.A petition for a rehearing is filed in this case, and in connection with it a certified copy of the summons which was issued in the cause and of the "affidavit of service thereof. We are asked to grant a' rehearing and award a certiorari to bring up an authentic copy of the process and the proof of service thereof.
It has been several times decided by this court that it will not grant a rehearing to enable a party to have the record amended. The reasons for the rule are given in the opinion on the' petition for a rehearing in Warner v. Campbell, 39 Ind. 409. We cannot make exceptions to the rule.
We may remark, however, as a further reason for not granting the petition, that the affidavit of service of the writ, etc., seems to us insufficient. The statute provides for such ^ervico of process out of the State, but it requires that the affidavit of the service shall' “ set forth that the person thus served with notice is the identical person named in the action or proceeding; or the identity of the person served may be proved by the affidavit of the plaintiff, or any other person.” 2 G. & H. 64, sec. 39. The affidavit in this case states that the person making it, on a day named, served the summons, by reading the same to the defendants, Charles H. Cole and Mary L. Cole, and that “ the persons thus served acknowledged themselves to be the identical persons named in the action or proceeding in which this summons has been issued.” The object of the legislature, in requiring proof that the party served is the same as the party to the action, was, no doubt, to prevent the service of process on one person and the taking of judgment against another. It is evident that it furnishes no security against such a fraudulent practice, to prove that the person on whom the process is served acknowl*124edged himself to be the person sued. We think that, upon this affidavit, the court should not have found that legal service had been made.
The petition is overruled.