dissenting:
I dissent from the order denying the petition for a rehearing. I concurred in the opinion in this case with great reluctance, feeling that perhaps the conclusions of my esteemed associates were entitled to more consideration than my own, but, after a more thorough investigation of the matter, I am convinced that the writ should not issue.
This is an original proceeding in prohibition. Our statute provides: “The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, *162whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.” Section 5708, Rev. Laws.
From the statute quoted it will be observed that this writ will issue to a court of inferior jurisdiction only when the proceedings sought to be prohibited are without or in excess of the jurisdiction of such court. Furthermore, it is a well-recognized rule that this writ is to be issued with caution and forbearance, for the furtherance of justice, and even then only when there is no adequate remedy at law. State ex rel. Irving National Bank v. Second Judicial District Court, 47 Nev. 83; 217 Pac. 962.
In the light of the statute quoted and the well-recognized rule stated, let us consider the facts of the matter and apply the law. The respondent Lillie Stimson filed in the respondent court a motion to vacate and set aside a decree of divorce dissolving the bonds of matrimony existing between her and her husband, the petitioner herein. The motion- is based upon several grounds, among others, that the plaintiff in the divorce action (petitioner herein) perpetrated a fraud upon the court and upon the defendant in the divorce action; that the affidavits and proofs filed in said divorce action prior to the trial thereof are insufficient to give the court jurisdiction to hear, consider, and render a judgment and decree in- the matter; and upon the further ground “that the defendant had no notice of the pendency of this cause or of the proceedings until long after the trial was had.”
Bearing in mind that this is an original proceeding, and not one on appeal, we should' fully consider every matter embodied in the record to determine if, in view of the reluctance with which such writs are issued, one should issue in this matter.
The petition for the writ contains the affidavit made by Stimson as a basis for the order of publication of summons, the order of publication entered by the court, and the proof of publication. The affidavit for the order *163of publication of summons states that the last known place of residence of the defendant was Corvallis, Benton County, Oreg., and that the more recent postoffice address of the defendant was General Delivery, St. Louis, Mo. It then recites that the affiant had received several letters stating that they did not know the residence or whereabouts of the defendant, one being to the effect that the writer had seen her at the postoffice in St. Louis, Mo. It then contains the following statement: “That affiant has inquired and caused further inquiry to be made in and about Corvallis, Oreg., of persons who were friends and acquaintances of himself and his wife, but he has been unable after due and diligent effort to obtain any information whatsoever, either from friends and acquaintances or any. other persons, or from any other source of information, as to the present residence of the defendant, except that which is hereinbefore set forth.”
The statute which was in force at the time the divorce action in question was instituted provided; in substance, that, if it be made to appear by affidavit that the defendant resided out of the state, or had departed from the state, or after due diligence could not be found in the state, the court might order the service of the summons by publication. Nowhere is it stated in this affidavit that the defendant was not a resident of this state, nor does it undertake.to show that she could not have been found therein. The affidavit fails to state facts showing-diligence on the part of the plaintiff, which was necessary to give the court jurisdiction to make the order of substituted service of summons, and for this reason alone the court never acquired jurisdiction to make the order of publication. Perry v. District Court, 42 Nev. 284, 174 Pac. 1058.
But, ignoring this question, and assuming that the court did have jurisdiction to make the order for substituted service, it is my opinion that the order was never complied with, and hence the court did not acquire jurisdiction to hear, determine, and adjudge the matter presented. As has been pointed out, the court ordered *164the service of summons by publication in a newspaper, and by mailing a copy thereof, together with a copy of the complaint in the action, to the defendant at Corvallis, Oreg., and to General Delivery, St. Louis, Mo. The only proof showing a compliance with the order (as to mailing the summons and copy of the complaint) is the affidavit of the plaintiff himself that he mailed such copies to the defendant to Corvallis, Oreg., and the affidavit of his attorney that he mailed the copies to her at General Delivery, St. Louis, Mo. This is no service at all. Neither a plaintiff nor his attorney can serve a summons. At common law the service of summons had to be by an indifferent person — one who was not interested in the litigation. 8 Bacon’s Abr. p. 690.
By statutory enactment the common law exists in this state except where expressly changed by statute. There is no statute in this state authorizing a person interested in the result of litigation to serve a summons. The so-called service by the plaintiff and his attorney is void, and could not give the court jurisdiction.
In State ex rel. Finch v. Duncan, 195 Mo. App. 541, 193 S. W. 950, wherein it considered the authority'of a husband, acting as deputy sheriff, to serve upon his wife certain papers in the matter of an inquisition into her sanity initiated' by him, it was helcf that no jurisdiction was acquired in the matter. The court said: “Now, in civil- actions it has never been the policy of the law, either statutory or that known as the unwritten or common law, that the person who brought the action and was interested therein should be allowed to also serve the process and make return thereof. * * * So that even in the case of an ordinary civil action, involving no more than a mere civil liability for a limited sum of money, and where the regular process server is an official under heavy bond for the faithful performance of his duties, still the statute will not permit him to act in a case where he is plaintiff or is interested in the outcome of the suit. And the same is true at common law. * * * If an official who is *165under bond is not allowed to serve process as the foundation of a suit in which he is interested or is a party, how much less should a private person, who is a party to the proceeding and interested in the outcome thereof, be allowed to serve the foundational notice or process therein and make return by attaching an affidavit thereto ? * * * It is not a question of whether Mr. Finch in this case is or is not acting honestly and with the best of motives, nor of whether he did or did not deliver a copy of the notice to Mrs. Finch as «the attempted return on the notice states. The question is whether or not the law can regard service of jurisdictional notice, by one who is a moving party to a cause and interested in the outcome, as any service or notice at all. To recognize the validity of such notice in this case will give validity to it in all other cases of like character. It would open the way and make it more easily possible for designing persons to railroad another into guardianship and perhaps worse, and to deprive him of his liberty and property without an opportunity to be heard. Consequently, it is not ah error of fact against which this particular feature of relatrix’s application for a writ of prohibition is directed, but, if we are right in our view, it is an error of law in holding that to be notice which is not notice, when viewed in the general light of the law’s fixed, and settled policy. If the so-called notice on which the inquiry is based is in law no notice, then the error of considering it as notice is not only an error of law, but one going to the jurisdiction of the probate court to maintain the inquiry, and not a mere irregularity or defect thereof.”
In Nelson v. Chittenden, 53 Colo. 30, 123 Pac. 656, Ann. Cas. 1914a, 1198, the court said:
“In Toenniges v. Drake, et al., 7 Colo. 471, it was held that the service of a summons by a plaintiff in the cause is void” — citing other authorities to the same effect.
In Morton v. Crane, 39 Mich. 526, Judge Cooley, speaking for the court, in a case in which a service by an officer who was the plaintiff was attacked, said: “The danger of abuse in the case of a summons consists *166in this, that the officer may falsely make return of a service never made, and thereby put himself in position to obtain judgment by default against a party who perhaps will hear of the proceedings for the first time when an execution appears against him. No danger of abuse from an officer serving his own process can be greater than this, and the practice which would subject the officer to this temptation should not be tolerated. The courts generally have adhered with great propriety and justice to the rule that in no case shall a man be officer and party in the same proceeding” — citing authorities.
In Singletary v. Carter, 1 Bailey (S. C.) 46.7, 21 Am. Dec. 480, where the question was involved, the evils of such a practice were pointed out and condemned, the court holding that the proceeding upon such service was void.
In Rutherford v. Moody, 59 Ark. 328, 27 S. W. 230, it was held that service by plaintiff’s attorney was void. To the same effect: Flury v. Grimes, 52 Ga. 341; Dyson v. Baker, 54 Miss. 24; Snydacker v. Brosse, 51 Ill. 357, 99 Am. Dec. 551.
With the foregoing conclusions established, we are brought to a consideration of the propriety of issuing the writ sought. If it be conceded that the lower court has no j urisdiction to inquire into the question of fraud, it certainly has authority to inquire into the other questions involved, and, this being true, the writ sought should not issue. Furthermore, the writ issuing, as it does, only in the furtherance of justice, I am convinced, in view of the entire record, that a gross injustice would be perpetrated by the issuance of the writ. Furthermore, I am not entirely satisfied with the theory upon which we based our former opinion, realizing that weighty reasons and high authority exist in support of the contrary view. In 15 R. C. L. at page 704, it is said: “It is generally held that judgments procured by fraud may be set aside or vacated at the instance of one who himself is not a party to the fraud.”
We find in the 23 Cyc. at page 919, the following: *167‘‘Fraud practiced upon the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair.”
See, also, Craig v. Craig, 110 Kan. 13, 202 Pac. 594; 15 Stand. Ency. of Proc. 191.