People v. Mulcahy

112 P. 853 | Cal. | 1910

Appeal from an order setting aside a default judgment. In August, 1899, the district attorney of Placer County filed a complaint to foreclose the interest of Patrick Mulcahy in certain school lands and to cancel his certificate of purchase. The summons was served by publication and upon default of the defendant a decree of foreclosure was made and entered on December 4, 1899. On June 14, 1909, James T. and Theodore F. Hill as grantees by mesne conveyances from said Patrick Mulcahy gave notice of motion to vacate the judgment and after due hearing the motion was granted July 14, 1909. The material part of the court's finding was as follows: —

"That said judgment in said action is null and void on its face, and that the court never acquired jurisdiction over the person of defendant. That no service of summons, either actual or constructive, was ever made upon the defendant."

Appellant contends that the judgment is not void upon its face and that therefore the court had no power to consider the affidavit of James T. Hill (one of the petitioners), the relief not having been demanded within the time limited by section 473 of the Code of Civil Procedure. (Citing People v. Davis, 143 Cal. 675, [77 P. 651].) There can be no doubt of the correctness of the rule announced in the above-cited case, and it, therefore, becomes our duty to scan the judgment-roll and to see whether or not invalidity of the judgment is apparent from an inspection thereof.

This case differs from People v. Davis, 143 Cal. 675, [77 P. 651], in the fact that subdivision 1 of section 670 of the Code of Civil Procedure is applicable here as it has stood since the amendment of 1895 and we are permitted to consider the affidavit for the publication of summons and the order directing publication.

The only important problem in this case arises over the interpretation of section 412 of the Code of Civil Procedure. The respondent contends that, under the requirements of this section, it must appear by affidavit or by the verified complaint on file that a cause of action exists against defendant, or that he is a necessary or proper party to the action. The complaint is not verified. The affidavit of the district attorney upon which the order for publication of summons was based stated substantially that he was acquainted with the facts of the case and verily believed that plaintiff was entitled to the relief sought and that Mulcahy was a necessary and proper party defendant. He did not affirm directly or on information and belief that the facts alleged in the complaint were true. Respondent contends that the affidavit in order to be effective must state probative facts from which the court could ultimately conclude that a cause of action against defendant exists and that he is a necessary and proper party. (Citing County of Yolo v. Knight, 70 Cal. 431, [11 P. 662], andColumbia Screw Co. v. Warner Lock Co., 138 Cal. 446, [71 P. 498].) These cases undoubtedly sustain respondents' theory. Appellant contends that the amendment of 1895 to section 412 of the Code of Civil Procedure changed the pre-existing rule and dispensed with the necessity of having a verified complaint in certain classes of cases. The material portion of that section is as follows: —

"Where the person on whom service is to be made resides out of the state; 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; or is a foreign corporation having no managing or business agent, cashier or secretary within the state, and the fact appears by affidavit to the satisfaction of the court or a judge thereof; and it also appears by such affidavit, or by the verified complaint on file, 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; or when it appears by such affidavit, or by the complaint on file therein, that it is an action which relates to or the subject of which is real or personal property in this state, in which such person defendant or foreign corporation defendant has or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part in excluding such person or foreign corporation from any interest therein, such court or judge may make an order that the service be made by the publication of the summons; . . ."

The position of the appellant is that the words "the complaint on file herein" contained in that part of the section which was adopted in 1895 dispenses with the necessity of verification of the complaint in cases like the one here considered because in the preceding clause the words "the verified complaint on file" are used. We cannot agree with this. The filing of a verified complaint (in the absence of a sufficient affidavit) is contemplated in the other parts of the section and when the reference of the statute is to "the complaint on file herein," evidently such verified complaint was in the contemplation of the legislature. There is no good reason why some sort of verification should be required in one class of cases and none in an equally important kind of actions. The word "herein" used in the statute, although awkwardly employed, indicates that reference was intended to the sort of complaint mentioned elsewhere in the section.

Actions of this sort are in invitum and strict compliance with the statute is necessary. (Columbia Screw Co. v. Warner Lock Co.,138 Cal. 446, [71 P. 498].) As we have seen, the statute was not closely followed in the requirement that the facts necessary to establish a cause of action should be alleged by a verified instrument — the complaint or the affidavit. This appears upon the face of the judgment, that is to say, in the judgment-roll itself. It follows that the order of the court setting aside the judgment was properly made. This conclusion makes it unnecessary to discuss the other points mentioned in the briefs.

The order is affirmed.

Lorigan, J., and Henshaw, J., concurred.