Opinion of the Court- DUNBAR, C. J. [ 7 Wash. A reference to the statute providing for the settlement of a statement of facts is necessary to the determination of this question, as a statement of facts can only be settled in the manner prescribed by the statute, and a judge can only certify a statement in accordance with the direction of the statute. Sec. 9 of chap. 60, Laws 1893, p. 114, which is an act providing for and regulating the taking of exceptions and settling and certifying bills of exceptions and statements of facts, and providing the manner of preparing a statement and the notice required, provides as follows: "If no amendment shall be served within the time aforesaid, the proposed bill or statement shall be deemed agreed to and shall be certified," etc. It seems to me that there can be but one construction given to this statute; that the intention of the legislature is plainly deduced from the language employed, viz., that a time and place have been denominated for amendments to be presented by respondent to the statement of facts (a copy of which has been served upon him), if he desires to make any amendments; and if he does not appear at such time and place and offer any objections or amendments, the judge must conclude that he accepts the statement filed as the proper statement, and that no amendments are desired; for the law says plainly that, under such circumstances, the proposed bill or statement shall be deemed agreed to, and shall be certified by the judge;" and under such circumstances, in my opinion, the judge has no other duty to perform; no duty of investigation is imposed upon him excepting where amendments are offered, and there is a contest instituted thereby. If respondents were allowed to disregard the time which is prescribed under the law for filing objections to the statement or amendments thereto, then all the provisions of the law as to time are utterly without force or meaning. The idea that the judge is only to enter into an investigation when the statement 66 Dec. 1893.] Opinion of the Court-DUNBAR, C. J. is questioned by the respondent is borne out by the provisions of § 11 (Laws 1893, p. 115), which provides: "The judge shall certify that the matters and proceedings embodied in the bill or statement, as the case may be, are matters and proceedings occurring in the cause, and that the same are thereby made a part of the record therein; and, when such is the fact, he shall further certify that the same contains all the material facts, matters and proceedings heretofore occurring in the cause and not already a part of the record therein, or (as the case may be) such thereof as the parties have agreed to be all that are material therein." Under the provisions of this section, if the parties agree that the statement contains the material facts the judge shall so certify. This provision, taken in connection with the provision in $9, that where there is no amendment the proposed statement shall be deemed agreed to, leaves very little to be said so far as the intention of the lawmakers is concerned. In this case there was, under the law, an agreement that the statement certified contained all the material facts, and the parties are bound by it. While the statute provides that the judge may correct or supplement his certificates according to the facts at any time before an appeal is heard; and that he may be compelled to do so by mandate of this court, he can only correct it in accordance with the facts as shown by the statement at the time of the settlement; but he certainly is not given authority to correct the statement and then make his certificate conform to the facts of the new statement, for this would be virtually a new settlement of the statement of facts, which, as we have said above, would destroy the force of the law prescribing the time; and the questions which ought to have been settled within ten days after the filing of the statement would remain unsettled up to the time of the hearing of the appeal, and no intelligent preparation for the hearing of a case in this court could be made. Concurring Opinion - STILES, J. [ 7 Wash. It is objected that this construction of the statute would place the settlement of a statement of facts in the hands of the litigants, or their attorneys, and that the effect might be to make this court a court of original jurisdiction. A glance at § 12 of the same act (Laws 1893, p. 116), leaves no doubt of the legislative intention to confer this power of settlement on the parties, for it specially provides that in case of the death of a judge the statement may be settled by stipulation of the parties with the same effect as if duly settled and certified by such judge while still in office; so that the only question remaining in my mind is the question of the constitutionality of the act, and I hardly think that the remote possibility of attorneys entering into a collusion, in violation of their oaths as officers of the court, to impose a false record upon this court is a sufficient consideration to warrant this court in holding the legislative act unconstitutional. If such a case should arise, and was brought to the attention of the court, I have no doubt of the power of the court to relieve itself of the attempted imposition. The question of notice presented at considerable length in the petition, it seems to me, cannot be considered here. If legal notice was not given to the respondent, his remedy is to strike the statement of facts, but he cannot rely on his want of notice until after the time for amendment has expired, and then abandon his position, and seek to substitute another statement, or another certificate, which would destroy the force and effect of the statement settled, and which could not be brought here with a certificate of any other character. The writ should not issue. SCOTT and ANDERS, JJ., concur. STILES, J. (concurring).—I concur in the foregoing, and in addition would say, that I desire it to appear distinctly, Dec. 1893.] Opinion of the Court-SCOTT, J. as my view of the matter, that it is entirely within the authority of the trial judge to correct his certificate at any time so as to make it conform to the truth; that is, if having certified that the statement contains all the material facts, when in fact it contains only a part of them, he cannot be estopped to make the correction. This seems to be the point about which the judge in this instance was most in doubt. HOYT, J.-I concur in what is said by Judge STILES as to the right of the court to correct its certificate, and think the writ should issue requiring him so to do. [No. 970. Decided December 9, 1893.] ANNA DECORVET AND CARL ROSIN, Appellants, v. PATRICK SUMMONS SERVICE BY PUBLICATION-SUFFICIENCY OF AFFIDA- Under §65, Laws 1877, p. 15, an affidavit stating that the defendant resides out of the territory is sufficient to authorize service by publication. (STILES. J., dissents.) The cause and general nature of a foreclosure proceeding is sufficiently stated in a summons by publication when it specifies with particularity the note upon which the action is brought, and defendants are informed that the action is brought to foreclose a mortgage given to secure its payment. Appeal from Superior Court, Thurston County. John C. Kleber, for appellants. Hobart G. Hagin, and O. V. Linn, for respondents. The opinion of the court was delivered by SCOTT, J.-This action was brought by appellants to quiet title to certain lands situated in Thurston county. Opinion of the Court-SCOTT, J. [7 Wash. Respondents' title rests upon a sale under a decree foreclosing a mortgage on said lands, in which action one George Cook was plaintiff and Carl Rosin and Anna Rosin were defendants. Respondents' title depends upon the validity of said foreclosure proceedings, which are attacked upon two grounds. The first point relates to the service of process, which was by publication. It is claimed that the affidavit upon which the same is based, under § 65, Laws 1877, p. 15, is defective and insufficient to authorize a service of summons by publication. It is further contended that the summons was defective and insufficient to confer jurisdiction upon the court, in that it did not sufficiently state the cause and general nature of the action, as required by 61, p. 13, of the act aforesaid. Sec. 65 provides as follows: If at the time the complaint is filed, or any time afterward, the plaintiff or intervenor, or an attorney in the action for the plaintiff or intervenor, file in the action his affidavit stating that the person on whom service is to be made resides out of the territory, or has departed from the territory, or cannot after due diligence be found within the territory, or conceals himself to avoid the service of summons, or the defendant or the party to be served is a foreign corporation, or the cause of action against such corporation arose within the territory, service may be made by the publication of the summons." And 61 provides that, if service is to be made by publication, the summons shall contain, in addition to the other requirements of said section, the cause and general nature of the action. The affidavit upon which the service by publication is based (omitting the formal parts) is as follows: "George Cook, being duly sworn, says, that he is the plaintiff in the above described action; that the defendants reside out of this territory; he therefore asks that summons be served on the defendants by publication.`` It is contended that this affidavit is insufficient, in that it |