Great Northern R. Co. 50 Minn. 405, 17 L.R.A. 84, 52 N. W. 905; Rood, Garnishment, §§ 233, 241; Note to case of Goodwin v. Claytor, 67 L.R.A. 209; Steer v. Dow, 75 N. H. 95, 20 L.R.A. (N.S.) 263, 71 Atl. 217; A. B. Baxter & Co. v. Andrews, 131 Ga. 120, 20 L.R.A. (N.S.) 268, 62 S. E. 42; McShane v. Knox, 103 Minn. 268, 20 L.R.A. (N.S.) 271, 114 N. W. 955; Holford v. Trewella, 36 Wash. 654, 79 Pac. 308.

To say that debts due nonresidents could not be garnished would defeat the statute. Rood, Garnishment, § 384, note 14.

Goss, J. In September, 1908, plaintiff Atwood began an action in district court against defendant Roan, and obtained personal service of a garnishment upon Tucker, Wallis, and Goyden, as garnishee defendants, within Stutsman county. Personal service was not had on defendant Roan, but after service of the garnishee defendants plaintiff filed a defective affidavit for publication of summons reciting "that the last known postoffice address of the above-named defendant, Charles Roan, is unknown," instead of stating "the place of the defendant's residence if known to the affiant, and if not known, stating that fact," as required by $ 6840, Rev. Codes 1905. The affidavit omits to state the place of defendant's residence or that his residence was unknown. Instead it does allege that his last known postoffice address is unknown, the equivalent of saying that he does not know what his last postoffice address was. This affidavit was the basis for substituted service by publication of summons. The garnishee defendants defaulted in answering the garnishee summons. Judgment was entered March 2, 1909, against the defendant, Roan, for $289.35 costs and damages upon such substituted service, and judgment was also then taken for said amount against all of the garnishee defendants. On September 23, 1911, the garnishee defendants moved to vacate the judgment taken against the defendant and themselves, basing the motion upon an affidavit reciting the alleged invalidity of the service of summons by publication in the main action, and upon the entire record, contending that the entire proceeding is void as had without jurisdiction of the defendant, Roan, or any subject-matter. This motion was denied by order dated February 3, 1912, and judgment thereon entered reaffirming the judgment sought to be vacated, with added costs taxed in the sum of $15. From

26 N. D.-40.

this order and judgment defendant appeals, staying proceedings pending appeal.

Two main question are presented: (1) Is the affidavit for publication of summons a substantial compliance with the requirements of § 6840, or on the contrary is it a nullity; (2) if said affidavit be fatally defective, can the garnishee defendants, in default in answer after personal service had upon them, and who offer no answer or defense on the merits as against the purported judgment taken against them by default, now urge that the judgment taken by the plaintiff against them as garnishee defendants is invalid?

As to the first contention, it is elementary that where constructive service of summons is had, the statute governing it must be strictly complied with. The attack here made on this judgment is direct, and not collateral. Phelps v. McCollam, 10 N. D. 536, 88 N. W. 292, and Freeman v. Wood, 11 N. D. 1, 88 N. W. 721. So we are not confronted with any presumptions applicable as tending to support the validity of a judgment against collateral attack. The affidavit for publication speaks for itself, and it is not contended that there is any presumption that any other affidavit of publication was ever filed. The fact that the plaintiff may have known the place of the defendant's residence and still have been able to truthfully declare on his oath that defendant's "last known postoffice address is unknown" to him, in itself, is enough to condemn the affidavit as invalid as a substantial departure from statutory requirements. An examination of the authorities is conclusive against respondent's contention that the terms "residence" and "postoffice" are interchangeable and synonymous; and that the statutory requirement of a disclosure as to the fact of residence is not complied with by a showing of fact of "last known postoffice address." See the recent cases of Gibson v. Wagner, Colo. App. 136 Pac. 93, and Norris v. Kelsey, 23 Colo. App. 555, 130 Pac. 1088. The Colorado statute required the fact to be stated in the affidavit for publication that the postoffice address was unknown, and the affidavit filed stated the residence as unknown. The judgment entered thereon was held void under collateral attack, following Empire Ranch & Cattle Co. v. Gibson, 23 Colo. App. 344, 129 Pac. 520; Empire Ranch & Cattle Co. v. Howell, 22 Colo. App. 389, 125 Pac. 592; and Empire Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 117 Pac. 1005, and numer

ous holdings cited in these opinions. See also Ruby v. Pierce, 74 Neb. 754, 104 N. W. 1142, where a return showing "last" usual place of residence was held not to be a compliance with the statutory requirement of service at the usual place of residence, and that the word "last" constituted an added unauthorized qualification to the return of service, and rendered the judgment entered thereon void. See also Wick v. Rea, 54 Wash. 424, 103 Pac. 462; Gilmore v. Lampman, 86 Minn. 493, 91 Am. St. Rep. 376, 90 N. W. 1113, at page 494, where it is also pointed out why the California cases cited by respondent, particularly San Diego Sav. Bank v. Goodsell, 137 Cal. 420, 70 Pac. 300, and Hanson v. Graham, 82 Cal. 631, 7 L.R.A. 127, 23 Pac. 56, decisions under the provisions of §§ 412, 413, of the California Code of Civil Procedure, do not apply under our practice, inasmuch as under the California practice the affidavits and order for publication are not an essential part of the record in the case. Besides, under our practice and statutes no order for the publication is required in obtaining substituted service of summons, since the change made in 1895 from the former practice and statutory procedure requiring such an order. In many jurisdictions an order for publication is a necessary step in constructive service, and decisions are found giving force to the presumption that proper evidence of nonresidence is presumed to have been exhibited, or the order for service by publication could not have been obtained, and judgments void without such a presumption obtaining have been held valid. But no presumption to this effect has ever been indulged in this state, but rather the contrary was the law when an order for publication was essential. Simensen v. Simensen, 13 N. D. 305, 100 N. W. 708, passing on the validity of a judgment entered in 1893. Manifestly, if there be any relaxing of the rule as to essentials, it would be found in such jurisdictions, instead of in those like ours where the affidavit for publication is a necessary part of the record and the contents of which must affirmatively establish the right to proceed further with constructive service. Though it is held in San Diego Sav. Bank v. Goodsell, supra, that the term "address" may be, for the purpose of their procedure, considered as sufficient compliance with the statute requiring the residence of a nonresident defendant to be disclosed to the court, upon an application for an order for service by publication, with direction to be made in such order for mailing of

summons, that holding is not authority to the effect that an affidavit stating, as here, that the "last known postoffice address is unknown," is the equivalent of a statement as required by our statute, that the place of the defendant's residence is unknown. A glance at the many authorities cited under "residence" in vol. 7, Words & Phrases, will disclose that the term "residence" has a definite legal meaning, i. e., as a place of one's abode, dwelling, home, or habitation. Conceding that the term "address" is synonymous with "abode" or "residence," as is intimated in the California case above cited, the qualification wherein defendant swears to his last known postoffice address may or may not in fact be a compliance with the requirements of the statute that the affidavit shall state "the place of defendant's residence if known to the affiant, and if not known, stating that fact," according to whether the postoffice address does or does not properly designate the place of the defendant's residence. For instance, one's residence may be within one state and his postoffice within another, in which case, if the postoffice be taken as his residence, an attachment could not issue or service by publication could not be had, while with the actual place of defendant's residence stated either or both would be available. This is not only possible, but perhaps frequent, as to those domiciled in either state who, reside alongside of or near a boundary line between two states. We cannot hold a postoffice address to have been meant or intended to be synonymous with the mandatory statutory requirement that the place of defendant's residence if known shall be stated, and if not known, that fact shall be stated, all as a basis for further proceedings in obtaining substituted service. For further cases on this subject, see North Star Lumber Co. v. Johnson, 196 Fed. 56, appealed and affirmed in 206 Fed. 624, discussing a similar statute of Oregon in proceedings in rem under attachment, although it seems publication is there made upon an order therefor; and Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565. If we depart in one particular from the plain statutory requirement on a matter concededly jurisdictional, under a theory as here advanced of substantial compliance, not only is the rule consonant with all previous decisions on such jurisdictional questions disregarded, that such requirements are to be strictly construed (see Soderberg v. Soderberg, 1 Dak. 503; Whaley v. Carter, 1 Dak. 504; Chamberlain v. Hutchins,

1 Dak. 506; Beach v. Beach, 6 Dak. 371, 43 N. W. 701; Rhode Island Hospital Trust Co. v. Keeney, 1 N. D. 411, 48 N. W. 341; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095; Birchall v. Griggs, 4 N. D. 305, 50 Am. St. Rep. 654, 6 N. W. 842; Severn v. Giese, 6 N. D. 523, 72 N. W. 922; Simensen v. Simensen, 13 N. D. 305, 100 N. W. 708), but there is imported an element of uncertainty as to jurisdictional requirements in this and kindred proceedings in rem, where, if the plain language of the statute be adhered to as the guide, there can be neither uncertainty nor ambiguity.

We conclude that the affidavit for publication was void; that consequently no valid proceedings were thereafter had in the main action. against the defendant, and that the only jurisdiction remaining in the court immediately after the filing of this purported affidavit for publication was such as was conferred upon it in a limited sense by the provisional remedy of garnishment and proceedings had thereunder. This takes us to the discussion of the garnishment side of the case.

The second question, as to the right of the garnishee defendants to attack the default judgment, involves a more extended discussion of our statutes and the general law of garnishment. The controlling sections of the statute are § 6972, expressly authorizing the service of a summons by publication upon the defendant where service of garnishee summons has been had; and § 6977, providing that "if any garnishee, having been duly summoned, shall fail to serve his affidavit [of nonliability] the court may render judgment against him for the amount of the judgment which the plaintiff shall recover against the defendant in the action for damages and costs, together with the costs of such garnishee action;" and also § 6982, providing that "the proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant as parties defendant," and prescribing the procedure, and that "when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action;

and if the defendant has judgment, the garnishee action shall be dismissed with costs. The court shall render such judgment in all cases as shall be just to the parties and properly protect their respective interests, and may adjudge the recovery of an indebtedness, . or personal property disclosed or found to be liable to be applied to the plaintiff's