Opinion
Docket No. 5574.
September 13, 1926.
APPEAL from an order of the Superior Court of San Diego County denying motion to set aside judgment. W.P. Cary, Judge. Affirmed.
The facts are stated in the opinion of the court.
Sweet, Stearns Forward and Richard M. Kew for Appellant.
Herbert C. Kelly and E.E. Hubbell for Respondent.
Plaintiff commenced this action on July 5, 1916, against a large number of defendants to quiet title to certain described real property situated in the county of San Diego. The complaint was verified by one of plaintiff's attorneys, who gave as the reason for his verification the "plaintiff's being absent from said San Diego County, wherein the affiant resides and said action is brought." On August 2, 1916, the plaintiff's agent subscribed to an affidavit for the publication of summons against a number of the defendants and on October 24th the same agent subscribed to a supplemental affidavit for the same purpose. On the following day the superior court entered its order for publication of summons based upon these affidavits. The default of the defendant Diedrich and others for failure to answer was subsequently entered and on March 3, 1917, judgment was entered against these defendants quieting title in the plaintiff as prayed in the complaint. On May 2, 1924, the defendant Diedrich moved to set aside this judgment in so far as it related to her and to a designated portion of the real property involved on the ground that the court had no jurisdiction of the person or of the subject matter, and on June 23, 1924, this motion was denied. From the order denying the motion the defendant Diedrich has appealed upon a typewritten record.
On this appeal the appellant urges that the order of publication of summons was void because (1) the complaint was improperly verified; (2) that the affidavits were insufficient to show the existence of a cause of action against this appellant, and (3) that the affidavits failed to show diligence on the part of the respondent at the time of the making of the order for publication.
[1] The complaint was verified by the affidavit of one of the attorneys for respondent, who stated that he knew the contents of the complaint and that the same was true "to the best of his knowledge, information and belief" and that he made the verification rather than the plaintiff "owing to said plaintiff's being absent from San Diego County, wherein affiant resides and said action is brought." It is argued that the verification of the attorney is made upon information and belief only. We cannot agree with this. The affiant stated positively that the allegations of the complaint were true and added "to the best of his knowledge, information and belief." These words do not detract from the positive affirmance of the truth of the allegations of the complaint. They merely state the general rule that any verification of the truth of the facts stated is to the best knowledge, information, and belief of the affiant. ( Pratt v. Stevens, 94 N.Y. 387, 392; Hambel v. Lowry, 264 Mo. 168 [174 S.W. 405, 406].)
[2] Section 446 of the Code of Civil Procedure provides that when an attorney verifies a complaint on behalf of his client he must set forth in his affidavit the reasons why it was not made by one of the parties and that such verification is permissible if the party is absent from the county where the attorney has his office or for some cause is unable to verify it or the facts are within the knowledge of the person verifying the same. It is patent that an attorney may verify on behalf of his client if any one of the three contingencies exists. In the verification before us the attorney complied with the third proviso when he affirmed that he knew the contents of the complaint wherein the facts were alleged and that these facts were true. This allegation necessarily implied a knowledge of the facts upon which the complaint was based. In addition to this he alleged that the respondent was absent from the county wherein he resided and the action was brought and it was, therefore, a matter for the trial court to determine when properly brought before it whether this was "some cause" for which the respondent was unable to verify the complaint, as covered by the second proviso.
[3] Appellant concedes that under the terms of section 412 of the Code of Civil Procedure, the question of verification of the complaint becomes unimportant if the affidavits upon which the order for publication was based sufficiently disclosed that a cause of action existed against her, that she was a necessary or proper party to the action, or that this was an action which related to real property in which she claimed some interest, or that the relief demanded in the action consisted wholly or in part in excluding her from any interest therein. In one of the affidavits upon which the order was based it was alleged that "the above entitled action is brought to determine the claim of each of the said defendants to an estate or interest in and to the premises described in the complaint filed in this action adverse to the plaintiff, which said verified complaint is hereby referred to and made a part of this affidavit." The complaint was in the ordinary form of an action to quiet title, merely alleging that the respondent was the owner in fee of the premises described and that the defendants and each of them claimed some interest adverse to her, which claim was without right. The prayer asked that the defendants set forth their claims and that it be determined that they had no estate or interest in the property. It is unnecessary to cite authority to the point that the complaint alleged all the necessary probative facts in an action of this kind, and it cannot be doubted that aside from the question of the verification of the complaint the affidavit sufficiently disclosed that the cause of action related to real property in this state in which the defendants claimed some interest adverse to the plaintiff. Appellant cites People v. Mulcahy, 159 Cal. 34 [ 112 P. 853], as holding that the affidavit is insufficient. Reliance is placed upon the opinion in the Mulcahy case because it involved the question of the sufficiency of an affidavit for the publication of summons in a case which, like the one at present, involved adverse claims to real property in this state. An examination of the opinion, however, clearly discloses that the supreme court did not have before it the amendment to section 412 of the Code of Civil Procedure, which included the provisions relating to causes involving adverse claims to property such as we have here. There is nothing in the Mulcahy decision which covers the point to which it is cited, and it is, therefore, not authority upon that proposition. The terms of the statute are plain that either the verified complaint or the affidavit must show the existence of one of the conditions mentioned in section 412 of the Code of Civil Procedure, and as the affidavit here in question clearly disclosed that the action involved adverse claims to real property in this state, it was sufficient within the terms of that section.
[4] The last point raised is that the first affidavit, subscribed on August 2, 1916, was insufficient to justify the court on October 25th of the same year to enter the order for publication of the summons because, though it disclosed that due diligence had been exercised on the part of the plaintiff to discover the location of the various defendants prior to August 2d, their location on October 25th might have been known. But the supplemental affidavit subscribed on October 24th and filed on the following day sufficiently disclosed that further search had been made for these defendants without success and the court was at the time of the making of the order fully informed that these defendants could not, after due diligence, be found for the purpose of making personal service.
Order affirmed.
Sturtevant, J., and Langdon, P.J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 12, 1926, and the following opinion then rendered thereon:
THE COURT.
Petition to have the above-entitled cause heard and determined by this court after judgment in the district court of appeal, first appellate district, division two, is denied. However, we withhold our approval of that portion of the opinion which holds that the complaint in the action was properly verified.