¶1OPINION DENYING A REHEARING.
¶2As exhibits to a motion for rehearing there is the affidavit of the clerk of the district court stating that to his knowledge no affidavits were filed in support of the application to open judgment; also affidavits of two different sheriffs to the effect that before they served plaintiff with notice of the application they took the precaution to compare the copies with the original application, and that the latter was not sworn to. However, the statute does not require the application to be verified.
¶3There is, and can be, no controversy over the fact that the court opened up the judgment on the oral testimony of two witnesses, who were examined by the defendants and were cross-examined by the plaintiff. The sole contention presented by the motion for rehearing which deserves attention arises over the construction of section 83 of the code of civil proced*190ure, which provides that before the judgment shall be opened, “the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and [to] make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice,” etc. (Gen. Stat. 1915, § 6974.)-
¶4It is seriously contended that the statute can only be complied with by the filing of an affidavit, and that oral testimony is not competent. This would make the filing of an ex parte affidavit of more force and effect than testimony produced in open court where the plaintiff, as well as the court, has an opportunity to cross-examine and ascertain whether or not the party making the application had actual notice. Where a judgment has been opened up at the instance of parties who have, as in the present case, a valid defense, the section of the code should receive a liberal, in place of a narrow technical, construction. It hardly requires a liberal construction, however. Its plain purpose is the-requirement that before a default judgment taken upon service by publication only shall be opened, it must be made to appear to the satisfaction of the court that the applicant had no actual notice in time to defend. Frequently, the applicant lives at a distant place, and so the statute expressly authorizes the showing to be made by affidavit. It was not necessary for the legislature to authorize district courts to hear oral testimony upon an issue of fact. It is usually an advantage to the plaintiff to have the application heard on oral testimony. Besides, it is hardly conceivable that this question was raised in the court below; if the mere failure to file an affidavit had been relied upon and called to the trial court’s attention, the objection could have been readily met by the filing of an affidavit of the same persons who testified orally.
¶5The opinion contained the statement that plaintiff’s contention was that defendants failed to show “by affidavit or otherwise” that they had no actual notice, etc. It is said this misstated plaintiff’s contention. The opinion has been corrected to show the contention was that the filing of an affidavit was necessary. In the opinion the paper filed by the former judge of the district court was referred to as an affidavit. This was *191taken from a statement in the abstract; but our attention is challenged to the fact that the paper signed by the former judge was a certificate, and not an affidavit. In this respect, also, the opinion has been corrected.
¶6Rehearing denied.