L.A. No. 1455.
September 20, 1904.
APPEAL from a judgment of the Superior Court of San Diego County. E.S. Torrance, Judge.
The facts are stated in the opinion.
W.H. Larew, and Edwin A. Wells, for Appellant,
No appearance for Respondent.
The plaintiff held a certificate of purchase for a certain section of school land in San Diego County. Suit was brought against her by the state to foreclose all her interest and annul her certificate of purchase because of non-payment of interest on the balance due of the purchase price of said land. A decree was rendered therein against her canceling said certificate. Thereafter a certificate of purchase for the same land was issued by the state surveyor-general to defendant. A contest was made in the land-office by plaintiff against this second certificate and the matter referred by the surveyor-general to the superior court for determination. A purported complaint was filed by plaintiff, service had on defendant, and the default of the latter entered for failure to answer. Subsequently an amended complaint was filed. The plaintiff then offered to make proofs to establish the allegations of her amended complaint, but the court refused to permit her to do so for the reason that the amended complaint failed to state a cause of action, and also "that the order of reference made by the surveyor-general does not give this court jurisdiction of the issues tendered by said complaint." The plaintiff refused to amend further, and judgment was entered against her that she take nothing, and that the case be dismissed, from which judgment she appeals.
We think the action of the court should be upheld for the reason that the complaint fails to state a cause of action. The judgment-roll in the foreclosure proceeding is attached as an exhibit to the complaint and made part thereof. So far as we can learn from an inspection of this roll, the judgment in the foreclosure proceeding is valid. Indeed, appellant fails to point in her brief to anything on the face of this roll that could be claimed to render the judgment void. We understand appellant, however, to contend that the facts stated in the complaint (which must be here admitted as true) show that the foreclosure judgment was obtained by fraud on a false affidavit for publication of summons. The allegations of the complaint in this regard are to the effect that the affiant who made the said affidavit, the deputy district attorney, did not in fact make diligent search or inquiry to ascertain the residence or whereabouts of the defendant in the foreclosure suit; "that if he made any search or inquiry at all thereof, the same was a sham and pretended search, and not made in good faith," etc. The affidavit for publication need not be here quoted. It was made part of the complaint and it is sufficient to say that it was very similar to the affidavit in Rue v. Quinn, 137 Cal. 651, and on the authority of that case and the cases following it the affidavit must be held sufficient. The contradictions of this affidavit contained in the complaint were directed only at those general statements and conclusions contained in it which might be drawn from the specific statements of facts therein. The complaint does not deny or controvert that the deputy district attorney inquired of the persons named in the affidavit as therein declared by him. These specific statements as to the inquiries and efforts made and the names of the parties inquired of to ascertain the whereabouts of the defendant are the more important parts of an affidavit for publication. It is these specific allegations of specific facts that must be shown to be false in any successful effort to establish the fraudulent character of an affidavit for publication. Such allegations constitute the essential part of the affidavit, and to admit their truth is to admit the truth of what the court acted upon when it made the order of publication. The complaint for these reasons fails to show that the affidavit of publication was false in any essential particular, and consequently fails to show that the foreclosure judgment was obtained by fraud. Upon the face of the complaint, then, the foreclosure judgment must be treated as valid and binding. It follows that the complaint altogether fails to show anything that would invalidate defendant's certificate of purchase, and therefore states no cause of action.
The superior court does not get jurisdiction of a state-land contest by reason of a reference of the contest by the surveyor-general. This must be followed by the commencement of an action, and unless an action is commenced, following the reference, in which a prima facie case is made in the complaint against defendant showing his certificate of purchase to be for some reason invalid, "he is not compelled to come into court and affirmatively set up his rights. The mere facts that defendant has a certificate of purchase, and that the plaintiff protested against the issuance to him of any further evidence of title, and that the order of reference has been made, do not make a case that the defendant is required to answer." (Polk v. Sleeper, 143 Cal. 70.)
Therefore, even though the defendant's default had been entered, the court was warranted in refusing to hear evidence in the matter until a complaint was filed that demanded an answer; indeed, in the absence of a complaint stating some cause of action, there was no case before the court.
We advise that the judgment be affirmed.
Cooper, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
Henshaw, J., McFarland, J., Lorigan, J.
Hearing in Bank denied.