(dissenting) — The question in this case is whether the court ever had jurisdiction to foreclose the mortgage since the affidavit filed in support of the foreclosure did not comply with the requirements of the statute. If the court never had jurisdiction, then post facto attempts by the mortgagee to remedy the defects by filing the supplemental affidavit and pointing to certain other documents in the record are unavailing. Such attempts cannot retroactively confer jurisdiction. The majority overrules the case law in this state and ignores the specific statute, RCW 4.28.100, by referring to the rule of court CR 4(h).
We should not be misled by the careless, inexcusable conduct of Mrs. Ekanger, the mortgagor, in attempting to avoid service, nor by her previous poor credit record, nor that she must have known of the foreclosure action. Equally irrelevant is the fact that the house sold, according to her counsel's representation, for approximately one-half of its market value óf $50,000, and that this distraught mother-mortgagor is attempting to care for two children and keep a home for them and herself and that should this judgment be vacated, she has arranged for credit so that *947she could pay off the mortgage and be assured of a home with her family.
It cannot be gainsaid that knowledge of the fact that a lawsuit may have been filed against a party is not equivalent to service. An action is not started if service is defectively made. Citation of authority is hardly necessary to hold service invalid in those cases where a substituted service is attempted by giving the papers to another person of suitable age and discretion at a place where the named defendant is a guest and not a resident. John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 83 P.2d 221 (1938) (hotel), or those where a summons and complaint are handed to one person, who then gives it to the named defendant. Ashcraft v. Powers, 22 Wash. 440, 61 P. 161 (1900) (attorney). Nor are we concerned with those cases where there is a defect in the affidavit of service, because then it is service which gives jurisdiction, not proof thereof, and the proof or the formal written return may be amended. Such cases allowing amendment to proof of service cited in the mortgagee's brief are irrelevant. Rather, we are concerned with whether or not the court acquired jurisdiction in the first instance.
The majority cites no case involving a mortgage foreclosure to support its position. Nor are the equities in its favor. It would strike most attorneys rather' strange that foreclosure of a mortgage on a resident effecting a deprivation of a home could take place by publication where the party's mailing address is known, where there has been constant telephonic communication with the person, the car is in the garage, barking dogs are in the house, and the person is well known. Service by publication would be most unusual.
RCW 4.28.100 requires that the affidavit by the plaintiff or his agent be filed with the clerk of the court, and state, among other things, that there has been deposited a copy of the summons and complaint in the post office directed to the defendant at the place of residence and that when the action is to foreclose a mortgage or to enforce a lien on any *948kind of real estate that that type of action justifying service by publication be stated therein.
In Thompson v. Robbins, 32 Wash. 149, 72 P. 1043 (1903), an action by the plaintiff to foreclose a lien for taxes on certain lands, the plaintiff made a mistake in his summons which required the defendant to appear within 60 days after service rather than 60 days after date of publication. Hence, the summons was not in accordance with the statute and did not confer jurisdiction upon the court to render the default judgment which had been entered in the foreclosure proceeding. The court stated:
It is the general, if not the universal, rule that "the right to serve process by publication being of purely statutory creation and in derogation of the common law, the statutes authorizing such service must be strictly pursued in order to confer jurisdiction upon the court."
Thompson v. Robbins, supra at 152. Default judgment in that case was then set aside.
In Felsinger v. Quinn, 62 Wash. 183, 113 P. 275 (1911), an affidavit for service of summons by publication was defective in that it did not state that the defendant was a nonresident or had property in this state, even though those facts did appear from the complaint. In holding that there was no jurisdiction, the court stated at page 186:
[T]he making of the affidavit for publication, in strict compliance with the statute, is as essential to obtaining such jurisdiction as the publication of the summons itself, and an affidavit which does not contain all the statements specifically required by the statute is not sufficient to authorize publication of summons or confer jurisdiction.
(Italics mine.)
In Lutkens v. Young, 63 Wash. 452, 115 P. 1038 (1911), as in this case, there was a judgment for foreclosure of mortgage which had proceeded through to a sheriff's deed. The mortgagor claimed, after the sale, that the judgment was invalid in that no jurisdiction was obtained and that the affidavit required by the statute was fatally defective in failing to state that the residence of the mortgagor was not *949known to the affiant as required by the code. In setting aside the default judgment and mortgage foreclosure, the court stated:
[WJhere jurisdiction is sought to be obtained through a service by publication, the affidavit required by the statute shall be in strict compliance with all the statutory requirements, and that an affidavit which fails in any of these essentials will not support a publication of summons, nor confer jurisdiction through such publication;
(Italics mine.) Lutkens v. Young, supra at 453. That case is still the law, having never been overruled, at least until the majority in this case saw fit to do so sub silentio. The defect was sought to be cured by filing an amended affidavit, but the court stated at page 454:
It does not appear to us that this is a defect that can be remedied by amendment. The jurisdiction of the court depended upon a substituted service, which was no service unless the statutory requirements and essentials affecting it had been fully complied with. The court had, no jurisdiction from the beginning, and this jurisdiction could not be conferred by amendment so long after the entry of judgment.
(Italics mine.) The court further stated:
But we know of no instance, where jurisdiction is lacking, where it is held that jurisdiction may be conferred by amendment.
Lutkens v. Young, supra at 454.
In McKeand v. Bird, 116 Wash. 208, 199 P. 293 (1921), the court held that, where the affidavit to support publication was contradictory in reference to the address, that the judgment should be vacated and repeated the rule that,
'The right to serve process by publication being of purely statutory creation and in derogation of the common law, the statutes authorizing such service must be strictly pursued in order to confer jurisdiction upon the court,'
(Citations omitted.) McKeand v. Bird, supra at 211.
To the same effect is Burns v. Stolze, 111 Wash. 392, 191 P. 642 (1920). In that case where jurisdiction was sought by *950publication, the affidavit, as in the case at bench, failed to state the existence of facts contained in any one of the seven grounds authorizing service by publication. The court held that a void judgment may be attacked at any time and vacated it.
In the case at bench, the affidavit is defective in several respects. It did not state the nature of the action, that is subsection 6 of the code, that it was an action to foreclose a mortgage; it did not state that a copy of the summons and complaint had been mailed to the mortgagor. Thus, under the case law the judgment of foreclosure is void.
The majority relies on CR 4(h)5 which purports to allow amendment of any process at any time. CR 816 provides that these rules apply except where inconsistent with rules or statutes applicable to special proceedings. Since CR 4(h) is inconsistent with the statute applicable to these special proceedings, the rule does not govern. The majority seeks to justify its position relying on Curtis Lumber Co. v. Sortor, 83 Wn.2d 764, 522 P.2d 822 (1974). Curtis Lumber Co. was a 5-to-4 decision not involving a mortgage foreclosure. Rather, it involved a foreclosure of a lien and whether or not the summons and complaint had to be both filed and served within the statutory 8-month period; the court extended the time for service of a summons after the court had acquired jurisdiction by the filing of the complaint within the statutory period. It does not involve a question *951of jurisdiction. Thus, that case is not in point, even if it is correct, and it well could be reconsidered. The statute of limitations for filing may be tolled in various ways. The case law indicates that the failure to strictly comply with the statutes relating to service by publication is jurisdictional and, unless complied with, any resulting judgment is void. A void judgment cannot be made to come alive by amendment because the court never had jurisdiction in the first place.
I do not believe this case can be distinguished from Schell v. Tri-State Irrigation, 22 Wn. App. 788, 591 P.2d 1222 (1979), cited in footnote 3 by the majority. In that case we held that the court had never acquired jurisdiction under the long-arm statute by attempted service of out-of-state defendants because plaintiff had not filed any affidavit at all. The difference between no affidavit at all and an affidavit which is fatally defective escapes me because the latter has been held to be of no effect to confer jurisdiction.
For these reasons I dissent.
Reconsideration denied May 8, 1979.
Review granted by Supreme Court August 22, 1979.
" At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued."
CR 81 states:
"(a) To What Proceedings Applicable. Except where inconsistent with rules or statutes applicable to special proceedings, these rules shall govern all civil proceedings. Where statutes relating to special proceedings provide for procedure under former statutes applicable generally to civil actions, the procedure shall be governed by these rules.
"(b) Conflicting Statutes and Rules. Subject to the provisions of subdivision (a) of this rule, these rules supersede all procedural statutes and other rules that may be in conflict."