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have been heretofore referred to. It also appears that, prior to the date upon which the service of summons and notice to appoint commissioners was quashed at a hearing had before the judge of the eighth judicial district, the Connollys were frequently within the jurisdiction of the court. Immediately subsequent, however, to the sustaining of said motion and the quashing of said service and notice for the appointment of commissioners, the Connollys absented themselves from the jurisdiction of the court and remained practically all of the time in the city of Spokane. Whether their absence was intentional or otherwise becomes immaterial, provided the service can be made in the manner in which, as appears from the record in this case, it was made.

The proceeding to condemn land under sec. 5226, Rev. Codes, is a summary proceeding; the object and purpose of the statute being to enable a party, who, under the law, is authorized to condemn land under said section upon a compliance therewith to obtain the immediate possession of the land sought to be condemned, in order to put said land to the particular public use intended with as little hindrance as possible. Said section provides, inter alia: "That at any time after the commencement of proceedings in the district court, as provided for in this title, to condemn property, and upon ten days' notice to the adverse party, the district court or the judge thereof may appoint three disinterested persons, who shall be residents of the county in which the land is situated, as commissioners to assess and determine damages that the defendant will sustain by reason of the condemnation and appropriation of the property described in the complaint, and the said commissioners shall, before entering upon the discharge of their duties, take and subscribe an oath to faithfully and impartially discharge their duties as such commissioners." It will be observed upon reading sec. 5226 that it fails to provide what the notice shall contain, how service shall be made, or in what manner proof of service of notice may be made. Sec. 5228, Rev. Codes, which is a part of the title on eminent domain, provides: "Except as otherwise provided in this title, the provisions of this code relative to civil actions

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and new trials and appeals, are applicable to, and constitute, the rules of practice in the proceedings in this title." In Chicago, Milw. & St. Paul Ry. Co. v. Trueman, 18 Ida. 687, 112 Pac. 210, this court said: "It will be observed that this latter section [sec. 5228] makes the provision of the code relative to civil actions applicable, 'except as otherwise provided in this title.'

Sec. 4890, Rev. Codes, provides: "Service by mail may be made where the person making the service and the person on whom it is made reside, or have their offices, in different places between which there is a regular communication by mail."

Sec. 4891, Rev. Codes, provides: "In case of service by mail the notice or other paper must be deposited in the postoffice, addressed to the person on whom it is to be served, at his office or place of residence, and the postage paid. The service is complete at the time of the deposit. . . .

From the record in this case it is established that on March 31, 1915, the Connollys were not within the jurisdiction of the district court of the eighth judicial district, when the notice for the appointment of commissioners was served upon the auditor of Kootenai county, and when said notice was mailed by the auditor's deputy to the Empire Mill Company at Harrison, Idaho, where their regular place of business is located. That the notice for the appointment of commissioners was served in the manner, at the time, and upon the person as set out in the sheriff's return is not denied; neither is the fact controverted that the notice of intention to appoint commissioners was regularly mailed by Elder, addressed to the place of business of the petitioner.

We are of the opinion that, under a statute such as we have in this state, which is silent in so far as the manner and proof of service of notice to appoint commissioners is concerned, service by mail as provided by sec. 4890, Rev. Codes, supra, constitutes a valid service and the proof of said service may be established by proper legal testimony, either oral or in writing.

There is no denial in this case that the Empire Mill Company received the notice for the appointment of the commis

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sioners. The contention of counsel for petitioner is directed. against the manner of service; that the service cannot be made upon the Empire Mill Company in any other way than by personal service upon the president, secretary, or other officer of the company designated in the statute upon whom service might be made, in an ordinary action at law. We cannot agree with counsel upon this proposition. As we view it, it is not so much a question of mere service, or the means adopted in order to obtain the service, but rather the fact of service, which would confer upon the court the jurisdiction to appoint the commissioners. No undue advantage could possibly be taken of petitioner by reason of the appointment of the commissioners. No snap judgment could be taken. Objections to the personnel of the commission could not be urged until after said commission was appointed. Sec. 5226, Rev. Codes, supra, provides expressly that said commissioners so appointed must be disinterested; that they must be residents of the county in which the land is situated; that they "shall give at least five days' notice in writing of the time and place where they will meet for the purpose" of determining the damage that the defendant will sustain by reason of the condemnation and appropriation of the property described in the complaint, "which place, unless agreed upon between the two parties, shall be within five miles of the premises aforesaid." In view of the fact that the statute requires commissioners to give notice of the time and place of the hearing, there is no reason why a technical construction should be placed upon the method of mere service of the notice for the appointment of commissioners, so long as the proof establishes the fact that the service of the notice was in truth and in fact made; and when so made, the court has jurisdiction to make the appointment.

Counsel's objection was not that he had not sufficient time between the hearing of the application for the appointment of the commissioners and the time when said commissioners would be appointed within which to prepare to resist the appointment, or to make all necessary preparation for the hearing, but that he had not been duly notified of the time when

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the commissioners would be appointed. (Burden v. Stein, 25 Ala. 455.) Had counsel requested a continuance of the cause for this purpose, no doubt the same would have been granted, the court having power so to do. (Bowman v. Venice & Carondelet Ry. Co., 102 Ill. 472.)

Counsel for Empire Mill Company contends that the service of the notice for the appointment of commissioners on March 31, 1915, fixing the date of hearing for the appointment of said commissioners on April 10, 1915, is not ten days' notice. Sec. 11, Rev. Codes, provides: "The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded." Sec. 12 of part 1, California Code of Civil Procedure, contains the same provision as section 11 of the Idaho Revised Codes, and has been frequently construed by the supreme court of California. In the case of Misch v. Mayhew, 51 Cal. 514, in construing said section 12, the court held: "In a contest concerning an election to an office, the three days' notice which a party who relies on illegal votes given for his adversary must give of the illegal votes he expects to prove are to be computed by including the first day and excluding the last." In that case the trial took place on the 10th and the list was served on the 7th. The court held that that was three days' notice. Learned counsel for the petitioner in the case at bar contends that the time intervening between March 31, 1915, and April 10, 1915, in order to constitute ten days' notice under sec. 5226, Rev. Codes, must include the whole of the tenth day of April and up to and on to the eleventh day of April, and that, as the notice was served on the 31st day of March, the full ten days had not expired. In answer to a like contention, the supreme court of California, in the case above cited, held that the contention was without merit.

In the case of Hannah v. Green, 143 Cal. 19, 76 Pac. 708 the court said: "Appellant contends that the court erred in denying his motion to dismiss the proceedings upon the ground that there had not been a compliance with sec. 1118, Code Civ. Proc., in that the day named in the order for a

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special session of the court to hear the contest was less than 10 days from the date of the order, but this contention is not maintainable. The statement of contest was filed on December 1, 1902, and the order was made on that day fixing the 11th of that month for the hearing. This was 'not less than ten days.""

In the case of Bates v. Howard, 105 Cal. 173, 38 Pac. 715, the court said: "The notice posted on the 12th day of July, giving notice of a hearing of the petition on the 22d day of the same month, was sufficient as a 10-days' notice, under sec. 1373 of the Code of Civil Procedure. Sec. 12 of the Code of Civil Procedure provides that 'the time within which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.'"

It is next contended by counsel for Empire Mill Company, that the description of the property contained in the notice. is insufficient to give the court jurisdiction. The notice. contains the following (after entitling the court and the cause):

"To the Empire Mill Company, a Corporation, the Abovenamed Defendant.

"You will please take notice that the plaintiff in the aboveentitled action will move the Honorable R. N. Dunn, one of the judges of the above-entitled court, at the court room in the City of Coeur d'Alene, Kootenai County, State of Idaho, on the 10th day of April, A. D. 1915, at the hour of ten o'clock A. M. of said day, for an order appointing commissioners to assess the damages which the defendant will sustain, or is entitled to by reason of the appropriation and condemnation of the lands of the defendant as prayed for in the complaint filed in this action and to which said complaint reference is hereby made as a part of this notice for further description of the property and objects of said condemnation.

"Said land sought to be appropriated being a strip of land 50 feet in width over, upon and across the South half of the Northwest quarter and the Northwest quarter of South