In Braly v.Seaman, 30 Cal. 610, although the affidavit presented evidence of diligence, it did not show that the plaintiff had failed to find that the defendant was not within the state.Summary of this case from Rue v. Quinn
[Syllabus Material] [Syllabus Material] Rehearing Denied 30 Cal. 611 at 619.
Appeal from the District Court, Twelfth Judicial District, city and county of San Francisco.
The following is a copy of the assessment roll for the year 1861-62, so far as it refers to the lot in dispute. Of like character were the assessments for the other years for which tax deeds had been given:
The following is the affidavit upon which the order for publication of summons was made:
Cityand County of San Francisco, State of California. ss.
Victor Seaman being duly sworn says that he is the plaintiff named in said action, which is brought upon complaint, verified by the oath of this affiant, and filed herein August 9th, A.D. 1862.
That this action is brought by plaintiff to quiet the title to certain premises set forth in the complaint, of which he verily believes he is the owner in fee, and of which he has been in the quiet and actual possession and occupation, uninterruptedly, for the period of eight years last past, and has a good and meritorious cause of action against said defendants, all of whom (excepting Robert A. Parker, who has filed his disclaimer herein,) this affiant believes claim an interest, or interests, therein, adverse to the plaintiff. That summons has been duly issued in said action.
Affiant further says, that for the period of three or four years last past, continuously, he has made frequent inquiry for the defendants, Robert A. Curl and James D. Curl, of more than a dozen persons in this city and county, and also in Santa Clara county, by letters which he has written and caused to be written to A. L. Rhodes, Frederick Hall, and R. A. Redman, Esqs., attorneys at law, and Isaac Van Loan and others residing in Santa Clara county; and also of not less than a dozen other persons, and of all persons whom the affiant thought likely to know them in this city and elsewhere, to ascertain where they might be found, but has been unable to find any one who has seen or heard positively from either of them for the past eight years.
That this affiant during the past three weeks has made a great deal of inquiry and research through this city and county of a great number of persons for information of Edward Priestley Rooney, but has been totally unable to hear anything of him or of his present residence.
That the defendant James H. Lucas, as he is informed by William Blanding, and by M. Hicks, his attorney in fact and nephew, resides and is now at the city of St. Louis, State of Missouri, out of the jurisdiction, and not within reach, of the process of this Court. Wherefore, this affiant, plaintiff, prays for the order of this honorable Court, that service be made of the summons herein upon said defendants, and each of them, by publication and other notice in the manner in like cases prescribed by law.
Plaintiff recovered judgment, and defendant appealed.
Joseph H. Moore, for Appellant, argued that the Court should have overruled the objection of plaintiff to the judgment in the case of Seaman v. Curl et al., of want of jurisdiction, because a party offering a final judgment to maintain a defence was not called upon to show jurisdiction in the Court rendering the same until the usual presumption of jurisdiction had been attacked; and cited White v. Wentworth, 3 Cal. 426; and Nelson v. Lemon, 10 Cal. 50. He also argued that an affidavit to procure an order for publication of summons was only required to state the substantial probative facts necessary to confer jurisdiction, and the Judge who made the order was authorized and required to decide whether or not sufficient facts were shown by it to confer jurisdiction, and if he decided affirmatively, the question became res adjudicata; and cited Collins v. Ryan, 32 Barb. 674; Roche v. Ward, 7 How. Pr. 416; Townsley v. McDonald, 32 Barb. 604; and Ricketson v. Richardson, 26 Cal. 149. As to the tax deeds, Mr. Moore argued that theassessment rolls showed such a designation of dollars and cents in the valuation as was recognized by mercantile usage in books of account, and that the Court would take judicial notice of this fact as it would of any other signs for those denominations of value which are usually employed and understood, and that at all events the assessment was no worse than an assessment of land in which the description contained a false designation which would not mislead; and cited Bosworth v. Danzien, 25 Cal. 296; and O'Grady v. Barnhisel, 23 Cal. 287.
William Matthews and J. A. Moultrie, for Respondent, argued that the assessment was void; and cited Hurlbut v. Butenop, 27 Cal. 57; and Wood v. Freeman, 1 Wall. 398; and that the Court properly rejected the judgment roll, because the affidavit upon which the order for publication of summons was made was evasive, and did not show that Curl's residence was unknown, nor that Curl could not be found.
BLOCK NO. 128. FISCAL YEAR 1861-62.
DESCRIPTION OF PROPERTY.
This property is assessed to the
parties listed, and to all owners
and claimants known or unknown, and
to all owners and claimants of any
interest, present or future therein,
or any lien upon the same.
50 Vara Lot Number 513.
Turner & Co.
$ 2 87.
JUDGES: Currey, C. J.
Ejectment for the undivided half of fifty vara lot number five hundred and thirteen, in the city of San Francisco.
On the 12th of May, 1848, George Hyde was the owner of the lot mentioned, and on that day conveyed it to James D. Curl and John W. Jenkins. On the 26th of December, 1850, James D. Curl conveyed the undivided half of the same lot to Robert A. Curl, who afterwards, on the 6th of February, 1865, conveyed his estate and interest therein to the plaintiff. Since the 1st of August, 1862, Joseph H. Moore has been the owner of the other undivided half of the lot, and for some time prior to the commencement of this action, the defendant was in actual and exclusive possession of the lot as the tenant of Moore. Before commencing this action, the plaintiff made a proper demand to be let into the possession of the premises as a tenant in common, which demand was refused by the defendant.
It appears from the transcript of the record that on the 8th of August, 1862, Victor Seaman, who is the defendant in this action, commenced a suit in the District Court of the Twelfth Judicial District, in and for the city and county of San Francisco, against the said Robert A. Curl and several other persons, by filing a verified complaint, in which he alleged that he was then in the possession of the premises in controversy as owner thereof in fee, and that the defendants in such suit claimed some interest or interests in said premises adverse to him; and further alleged that the claim of such defendants was without any right whatever; and further, that they had no estate, right, title, or interest in the premises, or any part thereof; and, in conclusion, prayed that such defendants might be required to set forth the nature of their claims, and that all adverse claims of such defendants might be determined, and that it might be decreed they had no estate or interest in the premises, and that they be forever barred from asserting any claim to the same adversely to the plaintiff in that suit. Robert A. Curl did not appear in the suit personally or by attorney; but it is claimed by the appellant that the Court obtained jurisdiction of his person by publication of the summons in accordance with the requirements of the statute. The Court, assuming such to be the fact, afterwards, in January, 1863, rendered a decree in the case adjudging and decreeing the pretended claim of Robert A. Curl, as well as that of other defendants, to the premises to be invalid and void; and further, that he had no estate, right, or interest in the premises, or in any part thereof; and also adjudging and decreeing the title of Seaman thereto to be good and valid; and further, decreeing that said Robert A. Curl be forever barred and enjoined from claiming or asserting any estate or interest of, in, or to said premises, or any part thereof, adverse to the title of said Seaman.
It was agreed by the parties at the trial that said Moore owned all the interest which Robert A. Curl at any time had, provided the judgment obtained against him by Seaman was valid. When this judgment was offered in evidence the plaintiff objected to it on grounds challenging the jurisdiction of the Court by which it was rendered, over the person of Robert A. Curl, and the objection was sustained. The main question now to be considered is whether such judgment was coram judice, or coram non judice as to the defendant Robert A. Curl. The order of the Court directing service of the summons in the suit of Seaman against Robert A. Curl and others, by publication first recites that, " On reading and filing the affidavit of Victor Seaman, the plaintiff in the said cause, and it appearing by said affidavit and by his complaint filed therein to quiet title to the premises therein described, that a cause of action exists against the several defendants above named, and it appearing that summons has been issued in said action; and it further appearing by said affidavit to the satisfaction of the Court that the defendants, James D. Curl, Robert A. Curl, and Edward Priestley Rooney, upon whom service of summons is to be made, cannot, after due diligence, be found within this State; " and then orders the publication of the summons to be made in a certain newspaper at least once a week for not less than three months. The summons was published--that is, the first publication was made in the newspaper designated, on the 27th of August, 1862, and thereafter once a week until and including the 27th of November of the same year. On the 10th of January, 1863, the cause was referred, on motion of Seaman's attorney, to a referee " to take the proof and report a decree to the Court." On the 17th of the same month the referee made his report, on which the Court five days thereafter rendered judgment in favor of Seaman against Robert A. Curl and others, in accordance with the prayer of the complaint.
The affidavit of Seaman, on which the order of publication of the summons was made, sets forth that the action in that case was brought by complaint duly verified, and that summons had been duly issued in said action. The statement of the object of the action is as follows: " This action is brought by the plaintiff to quiet the title to certain premises set forth in the complaint, and of which he verily believes he is the owner in fee, and of which he has been in the quiet possession and occupation uninterruptedly for the period of eight years last past, and has a good and meritorious cause of action against said defendants, all of whom (excepting Robert A. Parker, who has filed his disclaimer herein) this affiant believes claim an interest or interests therein adverse to the plaintiff." To bring the case within one of the conditions specified by the statute providing for obtaining jurisdiction of the persons of the defendants Robert A. and James D. Curl, Seaman deposed that for the period of three or four years thence immediately preceding he had made frequent inquiries for such defendants of more than a dozen citizens of the city and county of San Francisco; and had made like inquiries by letter of four persons named, and others residing in the county of Santa Clara; " and also of not less than a dozen other persons, and of all persons whom the affiant thought likely to know them in the city and elsewhere, to ascertain where they might be found, but has been unable to find any one who has seen or heard positively from either of them for the past eight years."
Service of summons by publication .
The mode of obtaining jurisdiction of a defendant by publication of summons is prescribed by the statute. It must appear by affidavit that he resides out of or has departed from the State; or cannot, after due diligence, be found within the State; or conceals himself to avoid the service of summons. The existence of one of these conditions is not enough. In addition thereto it must also appear by affidavit that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action. (Pr. Act, sec. 30.) It is already settled that the statute providing the mode for acquiring jurisdiction of a defendant by the publication of summons, being in derogation of the course of the common law, must be strictly followed in order to give the Court jurisdiction over the person of the defendant. ( Ricketson v. Richardson, 26 Cal. 152; Jordan v. Giblin, 12 Cal. 100.)
It does not appear from the affidavit whether the residence of Robert A. Curl was known to the appellant or not; nor does it show that he did not know where such defendant might be found. He states that he had made many inquiries for Robert A. Curl. That he had inquired of all persons whom he thought likely to know him in the city of San Francisco or elsewhere to ascertain where he might be found, but had been unable to find any one who had seen him or had heard positively from him for the past eight years. The facts stated do not negative all information on the appellant's part as to where the defendant, Robert A. Curl, might have been found and personally served with the summons; nor does it show that he did not obtain from any one of whom he made inquiries, information of where Curl was; but he deposes that he had been unable to find any one who had seen him or heard from him positively for eight years. The affidavit was clearly insufficient in our judgment to authorize the publication of the summons. We are of the opinion the mode adopted for acquiring jurisdiction of the person of Robert A. Curl failed of its object, and that the judgment rendered and entered against him was coram non judice and void; from which it follows the Court below was right in rejecting the evidence of the judgment in the case of Seaman against Curl and others.
Void assessment for taxes .
The judgment on which the defendant relied in his defence having been rejected, he next produced in evidence several tax deeds for different portions of the premises in controversy. Whatever title passed by these deeds, the landlord of the defendant had acquired before this action was commenced. To the admissibility of these deeds in evidence, the plaintiff objected on several grounds stated, and his objections being overruled, he introduced in evidence a transcript of the assessment rolls of the city and county of San Francisco for the fiscal years mentioned in said deeds, for the delinquency in the payment of taxes upon the premises for which years portions thereof were sold. The object of this evidence was to show that the premises in question were not duly assessed in such years. From each assessment roll, it appeared that the lot in question was listed in the names of Lucas, Turner & Co., and in the column headed with the words, " Value of the real estate," were written certain Arabic numerals, with nothing in connection therewith to designate that they represented the quantity or sum of anything whatever. The assessment rolls do not show that any assessment of the premises was ever made, but the contrary, and therefore the tax deeds depending upon a lawful assessment for their validity were invalid and void. ( Hurlburt v. Butenop, 27 Cal. 57; Woods v. Freeman, 1 Wall. 398.) After this evidence was introduced, the tax deeds were excluded by the Court, on the plaintiff's motion, which we hold to have been proper.
Upon the evidence before the Court, the plaintiff was entitled to the judgment which he obtained.