77 P. 998 | Cal. | 1904
The suit was brought to foreclose the interest of defendant in certain lands purchased by him from the state. The service of summons was by publication, and judgment against the defendant was entered by default May 26, 1896. Motion to set aside the judgment was made on June 27, 1902, on the grounds — stated generally — of want of jurisdiction in the court over the subject-matter, or over the person of the defendant. The motion was denied, and from the order denying the motion the defendant appeals.
The principal grounds urged for reversal are, that the affidavit for the order for publication of summons was defective in not showing due diligence of inquiry on the part of plaintiff as to the whereabouts of the defendant, and that the publication under the order (which was for four weeks only) was insufficient.
The latter point rests upon the assumption that it appears from the record that the defendant was a non-resident at the time of the publication; and such being the case, it is claimed by the appellant that by the provisions of section 413 of the Code of Civil Procedure the publication should have been for "two months," as provided in that section. But this contention is disposed of by the explicit provisions of section 3549 of the Political Code, which provide generally that the publication in the class of cases referred to shall be for "four weeks" only. It is no doubt true, as claimed by both parties, that the provisions of the Political Code and those of the Code of Civil Procedure are to be construed together (People v. Applegate,
As to the showing of diligence, the affidavit was substantially similar to that involved in People v. Wrin,
It is objected also that the personal judgment for costs of suit and publication is without jurisdiction; which may be admitted. But this part of the judgment is long since outlawed, and the validity of the judgment otherwise is not affected. Other objections made are, that the summons was defective in stating "the nature of the action"; that the register had no power to include in the delinquent list more than one year's interest — that is to say, more than the last of the five years' interest in default; that the judgment failed to reserve in the defendant, in explicit terms, the right to vacate it upon the terms allowed by sections 3550 and 3551 of the Political Code, or to redeem within a year, as provided by the act of 1881 (Stats. 1881, p. 65); that the complaint is defective; and finally that "the judgment is not sustained by the facts found," — i.e. by the facts recited in the judgment. But it will be sufficient to say of these contentions that we do not regard any of them as well taken.
We advise that the order appealed from be affirmed.
Chipman, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
Angellotti, J., Shaw, J., Van Dyke, J.
*426Hearing in Bank denied.