Svetina v. Burelli

NOURSE, P. J.

Appellant sued to quiet title to real propr erty which had been impressed with a lien for street work in a prior judgment foreclosing the lien. The present action is concededly a collateral attack on the prior judgment.

The contract for the street work was signed by appellant’s wife and minor daxxghter without (so he alleged in this action for the first time) his knowledge or coixsent. After the work was completed transfers between the husband and wife were made of the improved and of other unimproved lots and a property settlemexxt and separation followed. Thereafter a suit was filed to foreclose the lien. Appellaixt was made a party defendant, served with summons, and defaulted. A judgment of foreclosure was duly entered axxd the property was sold to Burelli, the respondent herein.

Following the trial of this action to quiet title the learned judge of the trial court filed an opinion giving his reasons for a judgment denying appellant the relief sought. This opinion fully covers all the issues raised and we adopt it as our reasons for affirmance of the judgment: The opinion follows:

“Plaintiff is in effect, though not in form, suing to remove a cloud that rests on the title to certain property which he claims to own. The cloud grows out of the judgment in the case of

Eaton and Smith

v.

Svetina et al.,

and the foreclosure of a lien decreed by the court in that case to exist on the property here claimed by plaintiff.

“ Plaintiff contends that the judgment in that action was void and that consequently all the subsequent proceedings taken therein were void. His claim is based on the fact that the street improvement contract sued upon in the foreclosure suit was entered into by plaintiff’s wife and minor daughter only, and that the plaintiff was not a party to that contract and that he never authorized nor ratified its execution. How

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ever, the prayer in the complaint in that action did ask that a lien be decreed to exist upon the property and that the property be sold in satisfaction of the lien. Plaintiff herein was joined as a defendant and was duly served in the action. The judgment roll shows that he was personally served. But whether he was personally served or was served by publication would not be material in view of the nature of the action. The plaintiff herein defaulted in that action and judgment was rendered decreeing the existence of the lien as prayed and directing the sale of the property.