Brown v. Sandell

NOURSE, J.

Plaintiff commenced this action on July 5, 1916, against a large number of defendants to quiet title to certain described real property situated in the county of San Diego. The complaint was verified by one of plaintiff’s attorneys, who gave as the reason for his verification the “plaintiff’s being absent from said San Diego County, wherein the affiant resides and said action is brought.” On August 2, 1916, the plaintiff’s agent subscribed to an affidavit for the publication of summons against a number of the defendants and on October 24th the same agent subscribed to a supplemental affidavit for

[315]

the same purpose. On the following day the superior court entered its order for publication of summons based upon these affidavits. The default of the defendant Died-rich and others for failure to answer was subsequently entered and on March 3, 1917, judgment was entered against these defendants quieting title in the plaintiff as prayed in the complaint. On May 2, 1924, the defendant Diedrich moved to set aside this judgment in so far as it related to her and to a designated portion of the real property involved on the ground that the court had no jurisdiction of the person or of the subject matter, and on June 23, 1924, this motion was denied. From the order denying the motion the defendant Diedrich has appealed upon a typewritten record.

On this appeal the appellant urges that the order of publication of summons was void because (1) the complaint was improperly verified; (2) that the affidavits were insufficient to show the existence of a cause of action against this appellant, and (3) that the affidavits failed to show diligence on the part of the respondent at the time of the making of the order for publication.

The complaint was verified by the affidavit of one of the attorneys for respondent, who stated that he knew the contents of the complaint and that the same was true “to the best of his knowledge, information and belief” and that he made the verification rather than the plaintiff “owing to said plaintiff’s being absent from San Diego County, wherein affiant resides and said action is brought.” It is argued that the verification of the attorney is made upon information and belief only. We cannot agree with this. The affiant stated positively that the allegations of the complaint were true and added “to the best of his knowledge, information and belief.” These words do not detract from the positive affirmance of the truth of the allegations of the complaint. They merely state the general rule that any verification of the truth of the facts stated is to the best knowledge, information, and belief of the affiant.