On Application for Rehearing.
STRAUP, J.A petition for a rehearing is filed in which it is urged that we, especially by what is said by us in respect of the affidavit for the publication of the summons, have gone counter to all of the adjudged cases on statutes similar to ours, jeopardized titles, upset a well-established and fixed practice, and created disorder and confusion where before was order and harmony. This on the claim that an affidavit and a service, such as was here made, is not open to a direct attack on the grounds urged against them. That the attack here was direct and not collateral is, in this jurisdiction, not open to question. *256(Mosby v. Gisborn, 17 Utah, 257, 54 Pac. 321.) That we think is also the weight of authority. (23 Cyc. 1062.) So what we have said on this question is in respect of a direct, and not a collateral, attack. This court has already held that an affidavit and an order for publication 8, 9 of a summons, not being a part of the judgment roll and of the record, will not, on a collateral attack, be inquired into, and that a court, on such an attack, will not look outside the record itself to ascertain whether they were properly made or filed, but will indulge the presumption that they were all that the law requires. (Amy v. Amy, 12 Utah, 278, 42 Pac. 1121; Hoagland v. Hoagland, 19 Utah, 103, 57 Pac. 20.) From this it would seem that counsel’s apprehension of the dire consequences of our decision is groundless, and is based on ai misconception of what may be directly and what collaterally attacked.
Counsel strongly urge that, under our statute, to authorize an order or direction of the clerk for a publication of the summons on the ground of nonresidence of a defendant, all that is necessary to state in the affidavit is a statement, in the language of the statute, that the defendant “resides outside of the state,” and that such a statement is a statement of an evidentiary and not an ultimate fact nor of a conclusion; that the affidavit here, that “the defendant, Louis F. Liebhardt,” and thirteen others (naming them), “each reside out of the State of Utah, and that the place of residence of each of the said defendants is to the affiant unknown,” is a statement of such a fact in the language of the statute; and that upon the filing of such an affidavit a mere ministerial, and not a judicial, duty is imposed on the clerk to direct or order a publication of the summons; and that upon such publication the service is complete without a mailing of a copy of the summons and complaint, or any effort made or diligence used to do so. In support of this, the cases of Calvert v. Calvert, 15 Colo. 390, 24 Pac. 1043, Ervin v. Milne, 17 Mont. 494, 43 Pac. 706, Schaefer v. Kienzel, 123 Ill. 430, 15 N. E. 164, Easton v. Childs, 67 Minn. 242, 69 N. W. 903, Hamilton v. Barrick*257low, 96 Ind. 398, Goore v. Goore, 24 Wash. 139, 63 Pac. 1092, are cited.
In Calvert v. Calvert, the affidavit was as follows: “That defendant is not a resident of Colorado'; and that her last-named place of residence was Ann .Arbor, Mich.” A copy of the summons and complaint, and a copy of the published summons, were mailed to the defendant at Ann Arbor.
In Ervin v. Milne, the affidavit was that the summons was delivered to the sheriff of Silver Bow County for service, and that “the sheriff of said county has returned the same to the clerk of this court with his return thereon indorsed to the effect that the said defendant, James B. Milne, could not, after due and diligent search therefor, be found in the county of Silver Bow, Mont.; that the last-known place of residence of said James R. Milne was at No. 407 West Copper Street, Butte City, Silver Bow County, State of Montana, but now-said defendant, Janies B. Milne, has departed from the state, and does not now- reside in the State of Montana, but at what particular place deponent does not know, and has not been able, after diligent inquiry, to ascertain.”
In Schaefer v. Kienzel, the affidavit stated the fact of non-residence of the defendant, and that the affiant w^as informed and believed she (the defendant) lived “in the City of St. Louis, in the State of Missouri, on 20th street and St. Louis Avenue.” A copy of the published notice was mailed to her at that address.
The question here is not so much that the fact of nonresi-dence of the plaintiff w-as not stated in the affidavit, hut, as indicated in our original opinion, that a copy of the summons and complaint ivas not mailed to the plaintiff, and no facts or circumstances stated, or found, or made to' appear, to excuse such failure. In respect to that question, how unlike are those affidavits to the one in hand, ivhere the bald averment is that “'the defendant does not reside in the State of Utah, and that his place of residence is to the affiant unknown.” When an everment is made that the defendant is a nonresident, and that he resides at a particular named place in another state, or that his last-known place of residence ivas *258at a stated place, an opportunity is afforded for the mailing of a copy of the summons and complaint to him; or if the place of residence, as shown in Ervin v. Milne, is not ascertainable, and, as was there made to appear by the affidavit, an excuse for the want or failure of mailing such copy is accounted for. But neither of these are here shown. In Easton v. Child, neither the contents nor the substance of the affidavit is made to appear. And the question there, in respect of the service, arose over the sheriff’s return. In Hamilton v. Barricklow, the defendant there, after the publication of the summons, appeared in the action and filed a general denial to the complaint, and a counterclaim. It would seem that ought to settle all questions relating to defects in the service of summons by publication, or otherwise.
The case of Goore v. Goore is to some extent an authority supporting counsel’s contention. There the affidavit was that the affiant, plaintiff’s attorney, “believes that the defendant-in said action is not a resident of the State of Washington, and cannot be found therein, but that his place of residence is unknown to said plaintiff and this affiant.” That was held good against a direct attack. But the sole ground of attack was want of jurisdiction. So what was there said by the court should be restricted to the ground of the attack. The court, quoting language of one of its prior decisions, De Corvet v. Dolan, 7 Wash. 365, 35 Pac. 72, 1072, said:
“But the statement that the defendants resided out of the territory is the statement of a fact, and is all that need be said upon the subject. The statute does not mate it necessary to show where the defendants resided. This is immaterial, so that they were nonresidents.”
But that language was first used by that court in a case of wholly a collateral attack. Then, when it had a case of a direct attack, it applied the same language and principle to a direct as to a collateral attack. And so does counsel here for respondent. No distinction is made of what may be attacked on a direct .and what on a collateral proceeding.
■ But let it be assumed that the language so used was proper, as applied to a direct attack for want of jurisdiction, yet we *259do not believe it is proper and reflects correct principles when applied to a direct attack upon the grounds here involved. Defects in the service of summons may be assailed in a direct proceeding on grounds other than jurisdiction. That is, the service though defective, may nevertheless be sufficient to confer jurisdiction, and yet may, on a direct proceeding, be successfully assailed on other grounds. We think that is true here. The defect here is one of service. That defect, 10 as already suggested, is not that the fact of non-residence was not averred, but that a copy of the summons and complaint was not mailed; and that no facts or circumstances are stated, found, or made to appear to excuse such failure. In dealing with that question, we think the place of residence of a nonresident defendant is very material. The law abhors and forbids the taking of property from a person without notice, and without his day in court. To proceed against and deal with a thing within the jurisdiction of the court, and subject to the court’s seizure and control, the statute provides for a constructive service on a nonresident by a publication of the summons. But the intent and spirit of the statute, in such case, as well requires a copy of the summons and complaint to be mailed to him, if his place of residence is known. This is a wholesome provision, and is not to be ignored. Drought to be complied with. It is itself a part of the service. This provision of the statute counsel in some statements disregards, and in others asserts, is complied with by the bald averment, “is to the affiant” (here not even to the plaintiff in the action) unknown; and that an implied finding by the clerk, on such an averment alone, that the defendant’s place of residence is not known finds ample support, and is sufficient to account for a failure to mail a copy of the summons and complaint.
Upon a presentation of an affidavit for a publication of the summons on the ground of a nonresident defendant, both the plaintiff in the action and the clerk have duties to perform: The plaintiff, by affidavit, to furnish the clerk the evidence in respect of the fact that the defendant is a nonresident; the clerk, upon the evidence so adduced, to determine that the defendant is a nonresident, and to direct or *260order a publication of the summons. But there the duties do. not end. The statute further requires, that, “where the residence of a nonresident or .absent defendant is known,” the clerk shall mail him a copy of the summons and complaint. What do the words “is known” mean? Known to whom? Personally known to the clerk? Personally known to the plaintiff, or to the affiant making the affidavit in his behalf ? Certainly not. They do and can only mean if the place of residence of the nonresident can, by reasonable diligence or inquiry, be discovered, be ascertained, be found. Who is to make evident the fact of such diligence and inquiry, and the fact of whether the place is or is not known, is or is not ascertained ? The plaintiff. Who, upon the evidence so adduced, is to determine whether the place is or is not known, is or is not ascertainable ? The clerk. Such is an orderly proceeding, and one which, we think, is necessarily implied by tile statute, and which will promote justice. We have, however, been cited to cases where it has been held that if the direction or order for publication of the summons is made by the judge or court the act is judicial; if made by the clerk under a statute, as here, the act is ministerial. This on the theory that clerks generally are unlearned in the law. Said the court, in the case of Calvert v. Calvert, supra.
“To require of the clerk such an exercise of judgment, without any knowledge of the law, without any legal attainments upon which he could possibly base a conclusion, would simply be saying to the clerk that he should judicially determine that question.”
Thus the question whether an act is judicial or ministerial is made to depend upon the legal learning of the officer or tribunal exercising the function. If he possesses such knowledge, the act is judicial; if he does not, the act is ministerial. The same kind of a reason is also given in the case of Ervin v. Milne. We think the determinative feature of whether a particular act or function of an officer or tribunal is ministerial, or judicial, or quasi judicial is more largely dependent upon the character of the act or function to be performed than upon the kind or amount of learning of the *261officer or tribunal performing the act. To bold the act here purely ministerial is to bold that a plaintiff in an action, or an affiant in bis behalf, may himself, in effect, direct the publication of the summons and control the mailing of the copy of the summons and complaint—a holding which may often lead “to gross abuse, and the rights of persons and property made to depend upon the elastic consciences of interested parties.” We do not think the Legislature contemplated the conferring of such a power upon an interested litigant.
Counsel also complains of our decision, on the ground that we have unsettled an established and prevailing practice of the district courts. It is said m'any default judgments in divorce proceedings, in proceedings by attachment, and in proceedings to quiet title have been rendered on a service by publication, founded upon an affidavit similar to that in band. If so, it is about time to stop such a practice. Nonresidents, as well as residents, have the right to acquire and bold property in this State. In the absence of proof of actual service, proceedings affecting their property require careful scrutiny; and the court, before entering a judgment taking it from them and giving it to another, should see to it that not only one, but that every requirement of the statute providing for a constructive service has, both in letter and spirit been strictly complied with. The spirit and intent of the statute is to give the nonresident notice of the proceedings against or affecting bis property, if that can be done. For that purpose is the provision of the statute requiring a copy of the summons and complaint to be mailed to him, if bis place of residence is known, if, as heretofore shown, bis place of residence can be ascertained or discovered by reasonable diligence and inquiry. Here comes a litigant into court by a proceeding, affecting the property of a nonresident who for many years bad the record title, except as bis rights thereto may have been divested by the tax sale, and seeks to take it from him,, and to claim it for himself. lie causes an affidavit to be filed by an agent that the nonresident “resides out of the State of *262Utah, and that bis place of residence is to the affiant unknown,” without even stating that the place of suck residence is unknown to the litigant. The clerk manifests no concern about it, and on the affidavit alone directs and causes the summons to be published, not in a “newspaper designated as most likely to give notice to the person to be served,” but in a weekly periodical least likely to give such notice. There the matter rests, awaiting the time to take the default. No effort and no inquiry is made to ascertain or to discover the place of plaintiff’s residence. The fact of the place of residence was regarded as wholly immaterial, and that all that was necessary to know was that the plaintiff was a nonresident. Hence no copy of the summons and complaint was mailed to him, and no effort made to do so, Upon such a service, plaintiff’s property is taken from him, and is given to the-defendant. We do not think such a service, as against a direct attack, is good, when it is made to appear, as here, that the defendant’s knowledge (the plaintiff’s in the former action) of the place of residence of the nonresident was not negatived, and where, as here, he had ready and convenient means of knowledge of such fact; and that upon reasonable diligence and inquiry such plaqe could readily have been discovered and ascertained, and a copy of the summons and complaint mailed. Upon the evidence, we do not say that the conduct of the defendant was such as to prevent notice to the plaintiff of the prior proceeding. But his conduct is more in harmony with that theory than with that of reasonable efforts to give plaintiff such notice.
The petition is denied.
FKIOK, C. J., and Me CANTY, J., concur.