90 P. 939 | Cal. | 1907
This is a proceeding in mandamus to compel the superior court of the city and county of San Francisco to pronounce a judgment in a case presented to that court for determination.
The petitioner instituted a proceeding under the provisions of the act approved June 16, 1906, for the establishment and quieting of title to real estate in case of a loss or destruction of the public records, commonly known as the "McEnerney Act." (Stats. 1906, p. 78.) The proceeding was numbered 125 in said court and was entitled "Robert O. Hoffman, plaintiff, v. All persons claiming any interest in or lien upon the real property herein described, defendants." The matter was duly presented to the superior court and it thereupon found that the petitioner had sufficiently made out his case to entitle him to the relief provided in the statute and prayed for in the petition, and that the proceeding was in all respects regular, with the supposed exception that the affidavit filed with the complaint, as required by the statute in question, was insufficient to give the court jurisdiction to proceed to judgment.
The affidavit was made by the petitioner. So far as material it is as follows: —
"I am the plaintiff in the above-entitled action. I have and claim an estate of inheritance in, and am in the actual and peaceable possession of, that certain real property [describing it].
"The character of my estate, right, title, interest and claim in and possession of said real property is as follows, to wit: I am the owner in severalty and in fee simple of said real property. I am in the actual and peaceable possession thereof, by myself, claiming title thereto adversely to the whole world. My estate, right, title, interest and claim in and possession of said real property have existed during the period of five months. I obtained said estate, and all my right, title, interest and claim in and possession of said real property from Henry A. Arnold. I have never made any conveyance of said real property, or any part thereof, or any interest therein.
"There is no existing mortgage, deed of trust or other lien on said real property. *389
"I do not know and have never been informed of any other person who claims, or may claim, any interest in or lien upon said real property, or any part thereof, adversely to me."
The supposed defect in the affidavit is that it does not state what inquiry, if any, was made by the plaintiff to determine whether or not there was at that time any other person in existence who claimed, or who might claim, any interest in, or lien upon, the said property, adversely to the plaintiff. It is conceded that the court ought to proceed to give judgment for the petitioner as prayed for, unless this defect deprives it of power to proceed otherwise than to require of the plaintiff another and more perfect affidavit and to proceed anew from the beginning. The court took the latter view and refused to render judgment.
The theory that a showing of diligence in making inquiry to ascertain whether or not there are other persons having or claiming interests in the property, is necessary to give jurisdiction to the court, is based on a misconception of the effect of the statute. The part of the act which is supposed to contain this requirement is section 5, which, so far as material, is as follows: —
"At the time of filing the complaint, the plaintiff shall file with the same his affidavit, fully and explicitly setting forth and showing (1) the character of his estate, right, title, interest or claim in, and possession of the property, during what period the same has existed and from whom obtained; (2) whether or not he has ever made any conveyance of the property, or any part thereof, or any interest therein, and if so when and to whom; also a statement of any and all subsisting mortgages, deeds of trust, and other liens thereon; (3) that he does not know and has never been informed of any other person who claims, or who may claim, any interest in, or lien upon, the property, or any part thereof, adversely to him, or if he does know or has been informed of any such person, then the name and address of such person. If the plaintiff is unable to state any one or more of the matters herein required, he shall set forth and show, fully and explicitly, the reasons for such inability."
The language of the third clause above quoted does not require a statement that there are no persons in existence *390
who claim, or who may claim, an adverse interest, if, in fact, the plaintiff has no knowledge or information of any. In that case, all that is required is that he shall state his own lack of personal knowledge and information that such persons exist. This is a fact which inheres in his own consciousness and of which he alone can have knowledge. The only inquiry necessary to enable him to make the statement required in the statute on this point, is a scrutiny of his own mind and memory. It is a matter which he could not be "unable to state" and to which the last clause above quoted can have no application. That clause relates exclusively to the other matters required in the affidavit. For instance, if the plaintiff knew, or had been informed, that there were adverse claimants, it would be necessary for him to state that fact in the affidavit. He might, however, be ignorant of the names or addresses of such persons. In that event, it would be his duty to make diligent inquiry to ascertain such names and addresses. If such inquiry proved ineffectual, it would be necessary for him to give the "reasons for such inability," and this would include a statement of the steps taken by him in making the inquiry, so that the court could determine whether or not the reasons were sufficient. (Forbes v. Hyde,
This question was referred to, but not decided, in the case ofTitle etc. Co. v. Kerrigan,
Something is said further in the same connection, in the case last cited, in regard to the duty of the plaintiff to make inquiry and the knowledge that would be imputed to him, if he should be aware of facts sufficient to put him on inquiry as to the existence of adverse claimants. These considerations would be of importance and the neglect to make such inquiry might be of great weight, on the question of the fraud or bad faith of the plaintiff, in any subsequent attack upon the decree upon the ground that there was extraneous fraud of the plaintiff in making a false affidavit to obtain jurisdiction. The affidavit, on this point, may be false in fact, and the plaintiff may know it to be false. This, if proven, would go far toward establishing the fraud, upon such subsequent suit. So, in any case, an affidavit to a fact, made to obtain process and secure jurisdiction, may be false, with like effect. The law, however, assumes good faith and does not presume fraud. In any case where constructive service is authorized, it is unnecessary, unless the statute expressly, or by implication, requires it, that the existence of good faith or the absence of fraud on the part of the plaintiff, in the preliminary steps to acquire jurisdiction of the proceeding, should be affirmatively shown upon the face of the record, either in the affidavit or elsewhere. If fraud or bad faith in this respect was practiced, it does not affect the jurisdiction of the court, nor render the decree invalid on its face. The remarks on that subject in the opinion referred to, are not to be considered as intended to declare that the rule on the subject applying to proceedings under this statute is in any respect different from that applying to other final judgments upon constructive service.
In Title etc. Co. v. Kerrigan,
It is argued that constructive service is permitted only because of necessity, and that no such necessity can arise from the mere fact that the plaintiff in the particular case has no knowledge or information of the existence of outstanding claims or interests in the property inconsistent with the title alleged in plaintiff; that this alone cannot justify the dispensing with personal service upon the owner of such outstanding claim, and that before substituted service upon him can be allowed under the constitution, it must at least appear that the plaintiff has made diligent inquiry to learn of the existence of such interests; and that, as the statute requires no inquiry on that point, but only a statement of the plaintiff's ignorance and want of information, it would operate to deprive the owners of such unknown interests of their property without due process of law.
We are unable to perceive any substantial difference in this respect between this and other instances wherein constructive service is authorized by statute. It has long been thoroughly established that, when necessary in order to reach property within the state, constructive service may be made upon non-residents, or persons absent from the state. (Eitel v. Foote,
In this connection it is proper to say that in determining whether or not due process of law is afforded, other statutes applicable to the proceeding may be considered. The provisions of section
It is again contended here, as in the former case, that courts have no power to adjudge, unless there is an actual *394
controversy; that title to real property cannot be quieted until it has been questioned; and hence, that the proceeding is purely administrative or ministerial, and not a judicial function, and that therefore the statute is an unauthorized delegation of administrative power to the judicial department of the state. This objection also was considered in the former case of Titleetc. Co. v. Kerrigan,
The petitioner had the right to demand the action of the superior court upon the case as presented. We cannot assume to direct that court as to the decision it shall render in the matter. But it is bound to give final judgment, either by granting the decree prayed for, or by denying it and dismissing the proceeding.
Let a writ of mandate issue commanding the superior court and the judge thereof to proceed to render judgment in the proceeding aforesaid.
Angellotti, J., Sloss, J., Lorigan, J., McFarland, J., and Henshaw, J., concurred.