STOCKSLAGER, J.
In the year 1891, one Pauline E. Maupin was the owner in fee simple of W. \ of S. E. and N. E. £ of S. E. ¿, section 23, township 39 N., R. 5 west, B. M. On July 6, 1891, she gave to Thomas L. Krutz a mortgage on said land to secure a promissory note for the sum of $175, with ten interest coupon notes attached, the note by its terms becoming due July 6, 1896, and provided for interest at the rate of seven per cent per annum until maturity and twelve per cent until paid. The interest coupon notes were given for the interest on the $175 note and were by their terms due semiannually, and if not paid when due to bear interest at the rate of twelve per cent per annum.
On said July 6, 1891, she also gave to C. A. Leighton a mortgage on the same land to secure a note for $26.50 in ten equal installments to become due on each six months until they were all paid.
On the twenty-third day of September, 1895, said Krutz assigned to A. L. Mills (plaintiff herein) the note for $175 with the mortgage securing the same.
On the twenty-seventh day of September, 1895, said Leigh-ton assigned the note for $26.50, together with his mortgage securing the same, to said Mills, the plaintiff.
After mortgaging said land said Pauline E. Maupin conveyed the land to one Thomas Childers and said Childers conveyed to Thomas E. Morgan and Rachel, his wife, who, on the second day of February, 1894, conveyed by warranty deed said land to J. L. Smiley, appellant. Said Smiley took possession [321]*321of the land February 2, 1894, and continued to live thereupon until May 20, 1903, when he was ejected by the sheriff under a writ of assistance. The land was assessed to Smiley and he paid the taxes thereon for the years 1897* 1898, 1899, 1900, 1901 and 1902.
On the twenty-fourth day of September, 1896, plaintiff Mills filed his complaint in the district court of the second judicial district for Latah county, attempting to foreclose the mortgage given by Pauline E. Maupin to Thomas L. Krutz * also to foreclose the mortgage given by Pauline E. Maupin to G. A. • Leighton, and in said action made the following persons- defendants: Pauline E. Maupin, a widow, Samuel Geer, Thomas-M. Morgan, Eachel Morgan, his wife, M. J. Shields Company; a'corporation, C. F. Adams and Security Savings and Trust Company of Portland, Oregon, a corporation.
September 24th a summons was issued against all of said parties. October 16, 1896, the sheriff of Latah county made return on said summons, not finding within the state Pauline E. Maupin, Thomas M. Morgan and Eachel Morgan and others of" the defendants. May 17, 1897, an affidavit for publication of summons was made by Edwin T. Coman, one of the attorneys for the plaintiff, and on the same day the court made the order-for such publication. December 7th proof of such publication was made and on the same day default was taken against the>. 'defendants not found as shown by the summons returned- by. the sheriff, and decree of foreclosure and sale was entered: against the defendant, Pauline E. Maupin, and against said-land; order of sale placed in the hands of the sheriff- of. said county for the sale of said land, which was returned and, filed without any action shown by the return on the thirteenth day o-f January 1898. December 7th plaintiff’s attorney moved to vacate the decree of foreclosure and sale heretofore entered, and January 13, 1898, the court granted the motion and made the order.
On the nineteenth day of May, 1902, the court made its findings, conclusions, decree of foreclosure and sale. August 2d, the findings, conclusions and decree were filed for record. August 4th the court ordered the sale of said land by the sheriff* [322]*322and on the fifteenth day of August said sheriff gave notice of such sale. September 22d following said sheriff made his return and report of said sale. May 12, 1903, a petition for writ, of assistance was filed in said cause and on the same day the court granted said writ. May 14th thereafter A. J. Green, attorney for ¿T. L. Smiley, gave notice of motion and also filed a motion to set aside the said writ of assistance. May 15, 1903, said Green, as attorney for Smiley, made and filed an affidavit on behalf of Smiley setting forth the claim of Smiley to said land. Counter-affidavits denying said claim were not filed, and on the same day the motion to set aside the writ of assistance came up for hearing before the court, and after argument the motion was denied. May 20th the sheriff executed the writ by ejecting said Smiley from the said land and premises. The deed from the Morgans to appellant Smiley was not placed on record until the thirteenth day of May, 1903, more than nine years after its execution.
At the sale of the property under the foreclosure proceedings, George Thorp was the purchaser, and after the time for redemption had elapsed he received his deed.
These facts are obtained from the record and from the state--, ment of counsel for appellant and respondent.
October 6, 1903, respondent George Thorp, through his counsel, appearing specially, filed the following motion: “Now comes Geo. Thorp, respondent in the above-entitled action, and appearing specially for the purpose of the motion and none other, moves this honorable court to dismiss the appeal in the-above-entitled cause and for such other and further order as may be just in' the premises. This motion is based upon the ground -, that the -order from which said appeal is prosecuted is not an appealable order, and secondly that the court has no jurisdiction to - hear and determine said appeal. Said motion will be based on thé records, papers and files in the above-entitled. cause.55
In support of this motion coimsel for respondent cites California etc. R. R. Co. v. Southern Pac. R. R. Co., reported in 65 Cal. 295, 4 Pac. 13. The entire opinion is short. It says:': “This is an appeal from an order denying a motion made by the. defendant to' set aside the final order of condemnation made in [323]*323certain condemnation proceedings. The order denying the motion is not appealable. It was as said in Henly v. Hastings, 3 Cal. 342, the mere negative action of the court declining to disturb its first decision. It is that decision which is the proper subject of complaint and the refusal to alter it any number of times would not make it less so.”
In Davis v. Donner et al., 82 Cal. 35, 22 Pac. 879, the syllabus says: “An order granting a writ of assistance is appealable as being an order made after final judgment, but a refusal to grant a motion of a party to the action to set aside such order is not appealable and an appeal therefrom will be dismissed. The mere negative action of a court declining to disturb its final decision is not reversible.” This syllabus is fully carried out by the opinion.
Counsel for appellant in opposition to this motion call our attention to People v. Grant et al., 45 Cal. 97. We quote from the syllabus: “One who is not a party to the record cannot appeal from an order granting a writ of assistance. Such person must move to vacate the order granting the writ, and in that way place himself on the record, and then if the motion is denied, appeal from the order denying his motion, or if the writ is executed, move to be restored to the possession, and if the motion is denied, take his appeal.”
In the case of the Mayor and Common Council of the City of San Jose v. Robert Fulton et al., 45 Cal.
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STOCKSLAGER, J.
In the year 1891, one Pauline E. Maupin was the owner in fee simple of W. \ of S. E. and N. E. £ of S. E. ¿, section 23, township 39 N., R. 5 west, B. M. On July 6, 1891, she gave to Thomas L. Krutz a mortgage on said land to secure a promissory note for the sum of $175, with ten interest coupon notes attached, the note by its terms becoming due July 6, 1896, and provided for interest at the rate of seven per cent per annum until maturity and twelve per cent until paid. The interest coupon notes were given for the interest on the $175 note and were by their terms due semiannually, and if not paid when due to bear interest at the rate of twelve per cent per annum.
On said July 6, 1891, she also gave to C. A. Leighton a mortgage on the same land to secure a note for $26.50 in ten equal installments to become due on each six months until they were all paid.
On the twenty-third day of September, 1895, said Krutz assigned to A. L. Mills (plaintiff herein) the note for $175 with the mortgage securing the same.
On the twenty-seventh day of September, 1895, said Leigh-ton assigned the note for $26.50, together with his mortgage securing the same, to said Mills, the plaintiff.
After mortgaging said land said Pauline E. Maupin conveyed the land to one Thomas Childers and said Childers conveyed to Thomas E. Morgan and Rachel, his wife, who, on the second day of February, 1894, conveyed by warranty deed said land to J. L. Smiley, appellant. Said Smiley took possession [321]*321of the land February 2, 1894, and continued to live thereupon until May 20, 1903, when he was ejected by the sheriff under a writ of assistance. The land was assessed to Smiley and he paid the taxes thereon for the years 1897* 1898, 1899, 1900, 1901 and 1902.
On the twenty-fourth day of September, 1896, plaintiff Mills filed his complaint in the district court of the second judicial district for Latah county, attempting to foreclose the mortgage given by Pauline E. Maupin to Thomas L. Krutz * also to foreclose the mortgage given by Pauline E. Maupin to G. A. • Leighton, and in said action made the following persons- defendants: Pauline E. Maupin, a widow, Samuel Geer, Thomas-M. Morgan, Eachel Morgan, his wife, M. J. Shields Company; a'corporation, C. F. Adams and Security Savings and Trust Company of Portland, Oregon, a corporation.
September 24th a summons was issued against all of said parties. October 16, 1896, the sheriff of Latah county made return on said summons, not finding within the state Pauline E. Maupin, Thomas M. Morgan and Eachel Morgan and others of" the defendants. May 17, 1897, an affidavit for publication of summons was made by Edwin T. Coman, one of the attorneys for the plaintiff, and on the same day the court made the order-for such publication. December 7th proof of such publication was made and on the same day default was taken against the>. 'defendants not found as shown by the summons returned- by. the sheriff, and decree of foreclosure and sale was entered: against the defendant, Pauline E. Maupin, and against said-land; order of sale placed in the hands of the sheriff- of. said county for the sale of said land, which was returned and, filed without any action shown by the return on the thirteenth day o-f January 1898. December 7th plaintiff’s attorney moved to vacate the decree of foreclosure and sale heretofore entered, and January 13, 1898, the court granted the motion and made the order.
On the nineteenth day of May, 1902, the court made its findings, conclusions, decree of foreclosure and sale. August 2d, the findings, conclusions and decree were filed for record. August 4th the court ordered the sale of said land by the sheriff* [322]*322and on the fifteenth day of August said sheriff gave notice of such sale. September 22d following said sheriff made his return and report of said sale. May 12, 1903, a petition for writ, of assistance was filed in said cause and on the same day the court granted said writ. May 14th thereafter A. J. Green, attorney for ¿T. L. Smiley, gave notice of motion and also filed a motion to set aside the said writ of assistance. May 15, 1903, said Green, as attorney for Smiley, made and filed an affidavit on behalf of Smiley setting forth the claim of Smiley to said land. Counter-affidavits denying said claim were not filed, and on the same day the motion to set aside the writ of assistance came up for hearing before the court, and after argument the motion was denied. May 20th the sheriff executed the writ by ejecting said Smiley from the said land and premises. The deed from the Morgans to appellant Smiley was not placed on record until the thirteenth day of May, 1903, more than nine years after its execution.
At the sale of the property under the foreclosure proceedings, George Thorp was the purchaser, and after the time for redemption had elapsed he received his deed.
These facts are obtained from the record and from the state--, ment of counsel for appellant and respondent.
October 6, 1903, respondent George Thorp, through his counsel, appearing specially, filed the following motion: “Now comes Geo. Thorp, respondent in the above-entitled action, and appearing specially for the purpose of the motion and none other, moves this honorable court to dismiss the appeal in the-above-entitled cause and for such other and further order as may be just in' the premises. This motion is based upon the ground -, that the -order from which said appeal is prosecuted is not an appealable order, and secondly that the court has no jurisdiction to - hear and determine said appeal. Said motion will be based on thé records, papers and files in the above-entitled. cause.55
In support of this motion coimsel for respondent cites California etc. R. R. Co. v. Southern Pac. R. R. Co., reported in 65 Cal. 295, 4 Pac. 13. The entire opinion is short. It says:': “This is an appeal from an order denying a motion made by the. defendant to' set aside the final order of condemnation made in [323]*323certain condemnation proceedings. The order denying the motion is not appealable. It was as said in Henly v. Hastings, 3 Cal. 342, the mere negative action of the court declining to disturb its first decision. It is that decision which is the proper subject of complaint and the refusal to alter it any number of times would not make it less so.”
In Davis v. Donner et al., 82 Cal. 35, 22 Pac. 879, the syllabus says: “An order granting a writ of assistance is appealable as being an order made after final judgment, but a refusal to grant a motion of a party to the action to set aside such order is not appealable and an appeal therefrom will be dismissed. The mere negative action of a court declining to disturb its final decision is not reversible.” This syllabus is fully carried out by the opinion.
Counsel for appellant in opposition to this motion call our attention to People v. Grant et al., 45 Cal. 97. We quote from the syllabus: “One who is not a party to the record cannot appeal from an order granting a writ of assistance. Such person must move to vacate the order granting the writ, and in that way place himself on the record, and then if the motion is denied, appeal from the order denying his motion, or if the writ is executed, move to be restored to the possession, and if the motion is denied, take his appeal.”
In the case of the Mayor and Common Council of the City of San Jose v. Robert Fulton et al., 45 Cal. 316, the syllabus says: “When application is made for a writ of assistance under a sheriff’s sale enforcing the lien of a tax, notice should be given to the defendant and also to the terre tenant, if there be one, who will be disturbed by execution of the writ. An appeal lies from an order refusing to vacate an order granting a writ of assistance. A motion may be made to vacate an ex parte order granting a writ of assistance.”
It would seem from these decisions that the rule in California is that if a party were not a party to the suit at the time of the issue of the writ of assistance he may come in and file his motion, as was done in the case at bar, and ask to have the order set aside, and in case of refusal appeal from the order denying his motion. On the other hand, if a party to a suit at the time of the issue of the writ, he would be required to appeal from [324]*324the order granting the writ. We think this the correct and equitable rule.
' It would seem harsh to hold that one who has never been a party to the action should be precluded from a hearing on a ihotion to vacate and set aside the order granting the writ. This is especially true when it is the only way in which he could roach 'the order complained of. The motion to dismiss the appeal is denied.-
This brings us to a consideration of the motion of appellant to set aside the writ of assistance. The motion follows: “Now comes J. L. Smiley, by his attorney, A. J. Green, and moves the court to set aside the writ of assistance issued by the said court in the above-entitled action on the twelfth day of May, 1903, in which said order states that the said J. L. Smiley had come into the possession of said land under direction of the defendants in said cause since the commencement of this action. Said' motion will be based upon the affidavit of J. L. Smiley and record evidence showing that the said J. L. Smiley purchased said land of the legal owner for a valuable consideration on February 2, 1894, and has resided upon said land ever since, and has had no notice of said action or of any action against said land.”
The fact that the court did not sustain this motion is assigned as error. We are only called upon to pass upon the question raised in the lower court. In view of this conclusion, what do we find was presented to the lower court by this motion?- Tó do this we must examine the affidavit in support of the motion. It is alleged in both motion and affidavit that appellant secured his deed from Thomas M. Morgan and wife on or about the second day of February, 1894, and by the record' shown that such deed was not filed for record in Latah county until the thirteenth day of May, 1903, after he was shown the sheriff’s deed to said premises to George Thorp. Appellant insists that he should have been made a party to the foreclosure proceedings. This might, and doubtless would be true in the absence.of section 4520 of our statute, which, among other things, says: “No person holding a conveyance from, or under the mortgage of the property mortgaged, or [325]*325having a lien thereon, which conveyance or lien does not appear of record in the proper office at the commencement of the action, need be made a party to such action.”
(May 14, 1904.)
[76 Pac. 786.]
Service op Notice op Appeal — Service op Summons by Publication— Affidavit for Publication — Order op Publication — Jurisdiction.
1. Where a judgment and decree of foreclosure has been entered and a sale thereunder has been made to a person not a party to the action, in satisfaction of such judgment, and a writ of assistance has been issued against a person not a party to the foreclosure suit, it is not necessary that a notice of appeal from the order granting such writ be served on all the parties to the foreclosure action.
2. An affidavit for publication of summons which states “that due and diligent search has been made for the defendants, and that said defendants cannot be found within the state of Idaho,” without stating the facts which constitute such “due and diligent search,” is insufficient to authorize the making an order for publication and an order and publication made thereon is without jurisdiction, and void.
3. An affidavit in such case should show whether the defendant is a resident or nonresident of the state, and his last known place of residence, or if unknown such fact should appear.
This motion is based upon the theory that the writ of assistance should be set aside, for the reason that appellant had purchased the land, lived upon it and paid the tax due for a number of years and had not been made a party to the action. He says he knew nothing of the pendency of the suit, but this does not excuse him from the requirements of the section of the statute above referred to. Had he placed his deed upon the records of the county there could and would be no question but that he would have been made a party defendant, and if not, then he could have his remedy in the courts.
The motion to set aside the writ of assistance is denied, with costs to respondents.
Sullivan, C. J., and Ailshie, J., concur.