Justice, concurring in part only and dissenting:
Where this Court recently in Leliefeld II bottomed its decision on Odenwalt v. Zaring1 on the proposition that when our legislature adopts the statutory law of another state, it adopts case law from that other state which interprets or applies that statutory law, the district judge and the respondents will have just cause for becoming disconcerted, disappointed, and despondent in reading today’s opinion for the Court— an opinion which acknowledges the existence of I.R.C.P. 10(a)(4), but sees little in its long tenure as a statute — which tenure far, far outstrips the Court’s own Rule 10(a)(4). This strange affair will be all the more startling to counsel involved in the case, and many other attorneys in the state who are well aware that the author of today’s opinion for the Court has chaired most of the various committees which manufacture and amend the rules for the Court’s promulgation. The promulgation of Rule 10(a)(4) was simply a switch from a statute to a rule, and had nothing whatever to do with Idaho’s adoption of the federal rules of civil procedure, in general, and specifically with Rule 15(c) dealing with amendments.
Despite the fact that nothing in the annotation to Rule 10(a)(4) provides the historical change from rule to statute, it is inescapable that the chairman and members of that particular court-appointed committee were well aware that the rule was not a product of committee draftsmanship, but rather was a verbatim reproduction of an Idaho statute with some really long whiskers on it. That statute was I.C. § 5-906. Although it will not be found in the 1979 publication of Volume 2 of the Idaho Code, nor in the 1985 Cumulative Pocket Supplement thereto, the 1978 pocket part to the 1948 publication of Volume 2 clearly sets forth in an annotation to I.C. § 5-906 (repealed) the compiler’s note informing the interested reader that I.C. § 5-906 was repealed by Sess. Law 1975, ch. 242, § 1, which was “AN ACT TO REPEAL PROCEDURAL STATUTES IN CONFLICT *277WITH OR COVERED BY RULES ADOPTED BY THE IDAHO SUPREME COURT ON PROCEDURAL MATTERS.” That was the demise of I.C. § 5-906— which was not “in conflict” with the Court’s rule, but “covered by” Rule 10(a)(4) —to the extent that the language is absolutely identical. That statute, I.C. § 5-906, was on the books when some of us older practitioners were in law school, and indeed, until 11 years ago. Moreover, it was even on the books when Idaho made the transition from a territory to a state of the Union. The Idaho Admission Bill, 26 Stat.L. 215, ch. 656, § 21, specifically stated that “all laws in force made by said territory, at the time of its admission into the union, shall be in force in said state, except as modified or changed by this act or by the constitution of the state.” Former § 5-906 was identical Code of Civil Procedure, which according to a 1903 volume in my office, was first enacted in 1872.
Irving v. Carpentier, 11 P. 391, decided by the California Supreme Court in the summer of 1886, revolved around the application of § 474. That court wrote:
The statute above referred to is an enabling one, and should be so construed as to cure the evil it was designed to correct, and advance the remedy. Persons are sometimes compelled to bring suits in haste. They have not time to ascertain the true names of parties to be made defendants. The statute of limitations may, in a day from the time the preparation of the complaint is commenced, effect a bar. Sometimes there is no means readily accessible of ascertaining the true names. The statute above referred to was enacted to afford a remedy in such cases. Should a plaintiff lose his right to have his case tried because of ignorance of the names of parties whom he has a right to sue, and as to whom he may have a good cause of action? How is the party sued by a name not his own injured? He loses no right by allowing a plaintiff to proceed ás provided by the statute. He has every opportunity accorded to any other defendant to make his defense. He can demur or file his answer, and set up every defense which he is advised he can rely on. The counsel for respondent herein likens this case to that of a party allowed to bring an action for relief on the ground of fraud, in which case the cause of action is not deemed to have accrued until the discovery by the party aggrieved of the facts constituting the fraud. In construing this rule it has always been held that a party discovers the fraud when, by the use of reasonable diligence, he might have ascertained the facts constituting the fraud. But the rule prescribed by the statute in this case is entirely different. It is when he is actually ignorant of a certain fact, not when he might, by the use of reasonable diligence, have discovered it. Whether his ignorance is from misfortune or negligence, he is alike ignorant, and this is all the statute requires. This is the true meaning of the statute. We adopt it the more readily because the party thus brought in as a defendant loses no rights by it. Irving, supra, 11 P. at 392 (emphasis added).
In December of 1886, the Thirteenth Territorial Legislature met. In enacting its session laws it adopted and enacted respectively a new Political Code, a new Civil Code, a new Criminal Code, and a new “Code of Civil Procedure, the entire subject of civil procedure in all the courts.” See Introduction to Revised Statutes of Idaho, 1887. At page 458 of that enactment is found § 4230, reading then just as it did for all of those 88 ensuing years until its demise at the hands of a legislature all too willing to oblige the Court’s request for its repeal. Nonetheless, however, it survived in rule form, and the rules committee saw not one whit of reason for changing a single word. Accordingly, the bar will be hardpressed indeed to understand why it is that the rule must not be given the same liberal application that the California court placed upon it before the legislature of Idaho was the first to take it verbatim from California — and the rules committee like*278wise. The California application still prevails in that state. Austin v. Massachusetts Bonding & Insurance Co., 364 P.2d 681 (Cal.1961) (a unanimous decision of the court sitting en banc). Consequently, the rule of Idaho until today was that a complaint designating unknown defendants with fictitious names tolled the running of the statute of limitations as to those defendants.
Many jurisdictions with provisions similar to Idaho’s Rule 10(a)(4) have so reasoned, and have held that the statute of limitation is tolled regardless of compliance with the notice requirement of that equivalent to Rule 15(c). Sooy v. Petrolane Steel Gas, Inc., 708 P.2d 1014 (Mont.1985); Peek v. Merit Machinery Co., 456 So.2d 1086 (Ala.1984); Santiago v. Becton Dickinson & Co., 539 F.Supp. 1149 (D.P.R.1982); Wakuya v. Oahu Plumbing & Sheet Metal, Ltd., 636 P.2d 1352 (Hawaii Ct.App.1981), aff'd 656 P.2d 84 (Hawaii 1982); Sousa v. Casey, 111 R.I. 623, 306 A.2d 186 (1973); Farrell v. Votator Division of Chemetron Corp., 62 N.J. 111, 299 A.2d 394 (1972).
The majority argues that I.R.C.P. 10(a)(4) does not apply because it “does not address the question of relation back or the effect of an amendment changing the name of a party against whom a claim is asserted, vis a vis the statute of limitations.” This is true only if one reads Rule 10(a)(4) out of context with Rule 3(a) and with the prevailing case law construction of Rule 10(a)(4). Under Rule 3(a) an action is commenced against a party upon the filing of a complaint, in which, according to Rule 10(a)(4), an unknown party can be designated. Under the construction of this language in California (prior to Idaho’s adoption of first the same statute and then embodied in a rule) and elsewhere, such a filing using fictitious name tolls the statute of limitations. Later, under Rule 10(a)(4), when the fictitiously named party’s “true name is discovered the pleading must be amended accordingly.” Clearly, then, Rule 10(a)(4) does apply to both the “relation back” question and the tolling of the statute of limitations.
The majority asserts that Rule 15(c) ought to control over Rule 10(a)(4) because it is more specifically applicable to the questions here presented. A close reading of Rule 15(c) reveals just the contrary. Rule 15(c) pertains generally to amendments “changing the party against whom a claim is asserted____” (Emphasis added.) Here, in contrast, is concerned not the “changing” of the party, but the identifying of the party already designated in the complaint. See Wakuya, supra, 636 P.2d at 1156-57; Peek, supra; Sooy, supra, 708 P.2d at 1017; Santiago, supra, 539 F.Supp. at 1153; Sousa, supra; Farrell, supra.2 As explained above, Rule 10(a)(4) as correctly applied specifically controls the questions of “relation back” and the tolling of statutes of limitation where a fictitious party is named.
The unfortunate result of the majority’s holding is that henceforth plaintiffs, who timely commenced their action against unknown parties identifiable only by what they did do or omitted to do (hence, defendants are then unknown as to name), are denied a day in court on a technical and nonmeritorious defense, and an unfair hypertechnical Supreme Court opinion. See Barrington v. A.H. Robbins Co., 702 P.2d 563, 565, 216 Cal.Rptr. 405, 702 P.2d 563 (Cal.1985). In the process, Rule 10(a)(4) is rendered a nullity and superfluous, as the majority well concedes by noting that the practice of pleading fictitious parties is “generally accepted” even without the benefit of statute or rule.
There remains again untouched in the majority opinion the proposition that, just *279as in Odenwalt, supra, it must be presumed that the committee utilized the language of the same rule from our sister state of Nevada; the Supreme Court of that state had addressed the exact issue at a time prior to the promulgation of the same rule in Idaho. Hill v. Summa Corp., 518 P.2d 1094 (Nev.1974). The opinion for the court held thusly:
In our view, when a plaintiffs counsel has properly utilized NRCP 10(a), adequately alleging intended defendants and present uncertainty as to their names, stating the names later in an amended pleading cannot be equated with “adding” totally new parties to the action. Cf. Knight v. Witco Chemical Co., 89 Nev. 586, 517 P.2d 792 (1973). Then, at least, there is no reason an amendment stating the names should be regarded differently under NRCP 15(a) than any other facts counsel may wish to correct or clarify by filing an amended pleading “once as a matter of course.” By virtue of NRCP 10(a), the designated but unnamed defendants are already parties in legal contemplation. A subsequent amendment, stating their actual names, therefore relates back to commencement of the action as provided in NRCP 15(c). Hill, supra, 518 P.2d at 1095 (emphasis added).
The court was unanimous. Chief Justice Thompson, in a separate concurring opinion, provided a historical analysis of Nevada’s Rule 10(a), much as I have done:
Rule 10(a) is the successor to NCL 8641 which, in turn, was borrowed from Cal.C.C.P. 474, presumably with the construction given it by the California court. State ex rel. Brennan v. Bowman, 88 Nev. 582, 585, 503 P.2d 454 (1972).
The Rule does not refer to a party who is not known. It does refer to a party whose name is not known. Thus, it appears to embrace the case where the plaintiff has in mind the identity or description of the fictitiously named defendant, but not his true name. Mercantile Trust Co. v. Stockton Terminal & R. Co., 44 Cal.App. 558, 186 P. 1049 (1919); Day v. Western Loan & Bldg. Co., 42 Cal.App.2d 226, 108 P.2d 702 (1940).
The primary purpose of the Rule apparently is to enable the plaintiff to bring suit before it is barred by limitations. Austin v. Massachusetts Bonding & Insurance Co., 56 Cal.2d 596, 15 Cal.Rptr. 817, 820, 364 P.2d 681, 684 (1961); cf. Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969).
When the case truly is one within Rule 10(a) and the true name of a defendant is substituted for the fictitious name, then, and only then, is he to be considered a party to the action from its commencement. Hill, supra, 518 P.2d at 1096 n.1.
While I fully appreciate that the majority opinion pays lip service to the far earlier existence of I.C. § 9-506, such does not obviate my criticism, but in fact serves to heighten it. In Odenwalt, supra, over a strong objection by both myself and Justice McFadden, Justice Bakes was able to persuade two other members of the Court to his notion that I.C. § 6-801 “is virtually identical to the Wisconsin comparative negligence statutes in effect in 1971;” and because “this Court has consistently held that ‘a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction,’ ” and therefore, “we should follow the interpretation which the Wisconsin Supreme Court had placed upon their comparative negligence statute prior to 1971.” Odenwalt, supra, 102 Idaho at 4, 5, 624 P.2d at 386-87.
A majority vote having prevailed in Odenwalt, that exact rationale was applied in the opinion for the Court in Leliefeld II —which opinion Justice Bakes specifically declined to join, and from which Justice Shepard dissented without revealing any opinion for doing so. The opinion of Justice Bakes states that he concurred in the result. The “result,” of course, may be confusing to some attorneys as to what is meant. By way of explanation, the “result” of an appellate court is what action it *280takes on the judgment or order appealed from. Possibilities open are to affirm the lower court, in full or in part, or to reverse the lower court, in full or in part, or to affirm in part and modify, or direct modification by the lower court. The judgment of the appellate court is the “result.” The opinion of the Court is the written statement of the ratio decidendi, meaning the reasoning of the Court, including precedential case law where applicable, by which it gets to its ultimate decision as to what will be done to the lower court judgment or order.
With that in mind, the reader will better understand my above statement that Justice Bakes did not join the opinion for the Court in Leliefeld II. Voting to affirm the judgment below, however, he set out his own ratio decidendi for doing so:
As in this case, where the per cent of recovery by the plaintiff in the second trial is established to be at least as high as, or higher than, in the first trial, the court was correct in allowing interest on the award in the second judgment back to the date of the first judgment. Leliefeld II, supra, 111 Idaho at 897, 728 P.2d at 1306.
As might be expected, Leliefeld II is back with the Court again, a petition for rehearing having been granted. As the minutes of this Court reflect, the order was entered on March 26, 1986, with Chief Justice Donaldson, Justice Huntley, and Justice Bistline voting “Deny,” with Justice Shepard voting “Grant,” and Justice Bakes voting “Definitely Grant.” This latter style of vote is entirely something new, and whether it is meant to signify the welcoming of a second opportunity to find some way to avoid the application of Odenwalt to Leliefeld II, or, perhaps, to afford a second opportunity for Justice Bakes to reconsider the law he would be making if two other members of the Court joined his Leliefeld II opinion, is unknown and speculative.
What is known and not in the least speculative, however, is that in Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984), the opinion authored by Justice Huntley gained three concurrences with Justice Bakes dissenting only in part and with opinion. Justice Shepard somewhat dampened the quality of his concurring with the majority thusly: “I concur in the Court’s opinion solely to the end that should a petition for rehearing be filed I may be able to, and most assuredly will, cast a meaningful vote to grant rehearing....”
Those practitioners who previously may have been not interested in or unaware of the Court’s own rule as to the requirement of the two votes necessary to order a rehearing, apparently took good note that day that a “meaningful vote” must be that of at least one justice in the majority — as witnessed thereafter by the increasing number of petitions for rehearing. All of which is to suggest not that Justice Bakes would not have concurred in the Leliefeld II result solely in order to vote as did Justice Shepard for the rehearing — but is to understand that his Odenwalt ratio decidendi was applicable to that case only, and to none other — and certainly not to Leliefeld II, and again not to this case.
For my part, here I would have preferred indulging in the belief that he somehow was unaware that six or eight months after the California Supreme Court handed down its opinion in Irving v. Carter, supra, quoted at length above, pp. 13-14, the Idaho territorial legislature enacted a statutory provision identical to California’s § 474 — all of which took place over a half-century before there was even only thought of Idaho’s embarking into its version of the Federal Rules of Civil Procedure.
Justice Bakes, as the trial bar will be led to believe, entertains the view that it is better to sacrifice Idaho case law in order to achieve complete uniformity in the trial practice to the extent that what serves the goose (the federal practice) must also be good for the gander (the Idaho practice). I am not in the least persuaded to making that sacrifice, and can best express myself by again quoting a passage which was thought applicable in other cases:
The most intolerable evil, however, under which we have lived for the past *281twenty-five years, has been the changing and shifting character of our judicial decisions, by which we have been deprived of the inestimable benefit of judicial precedents as a safeguard to our rights of person and property.
There may be some very slight validity to the philosophy espoused by Justice Bakes in refusing to apply the California case to our identical statute (now rule), but there is no wisdom in it. We are the Idaho Court sitting at the top of the Idaho heap — as it were, and the federal system will go its own way — irrespectively of what this Court does.3 Moreover, I would surmise that of the 2,000 or more attorneys in Idaho practicing trial work before Idaho’s 33 district judges and sixty-some magistrates, perhaps only between five to ten percent of that number are in trial work before Idaho’s three federal district judges, and that the federal practice of that scant number amounts to less than five percent of their average annual total trial practice — and usually less or none.
As said in a television comedy, “It's great to be King.” Today, the majority in a mannerly most fatherly and patronizing, abandons statutory Idaho case law and magnanimously confers a benefit on the trial bar and the litigants which should be little welcomed. At least, and commendably, the majority makes its new rule prospective only. As far as the instant case be concerned, under existing case law the trial judge was 100 percent correct in his ruling and was not entitled to be slapped in the face with a reversal. To the extent that the majority makes its new rule prospective only, I concur. To the extent that it nevertheless requires the plaintiffs to show commensurate due diligence, which is at odds with the underscored language of the California case, supra, which was extant interpretative California case law when our entire code was re-enacted in 1887, I dissent.
. Leliefeld v. Panorama Contractors, Inc., 111 Idaho 897, 728 P.2d 1306 (1986) (pending rehearing granted Mar. 26, 1986) (Leliefeld II); Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1981). Both of these cases are relied upon in today’s majority opinion as support for this Court’s being bound by case law under C.F.R. 15(c) — whenever the Idaho counterpart is under consideration.
. The fact that federal practice permits pleadings naming fictitious parties is meaningless, since that practice quite obviously lacks the status of a rule of procedure like Rule 10(a)(4). See Santiago, supra, 539 F.Supp. at 1153. This federal practice of necessity must conform with express Rule 15(c). Here, if anything, Rule 15(c) should conform with Rule 10(a)(4)'s statutory precursor which long ago established that statutes of limitation were tolled by filings timely made which designated defendants then unknown by name by what it was they had done or failed to do.
. As a generality our Idaho Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure. That was as initially done. Since then our Idaho rules have been amended, and amended, and amended, and new rules added. Anyone having knowledge that the federal rules have been amended in order to conform with this Court’s proliferative efforts should please report it in The Advocate.