Soher v. Cabaniss

MELVIN, J.

Petitioner seeks a writ of mandate to compel respondent, who is a judge of the superior court, to proceed with the trial of an action to quiet title brought under the so-called “McEnerney Act.” Respondent demurred to the petition, and as the question involved is purely one of law we may dispose of the whole matter by the ruling on this demurrer.

Petitioner commenced in the superior court of the city and county of San Francisco an action

in rem,

to establish her title to certain parcels of land. All the necessary steps were taken; summons was published pursuant to" order of court and the cause was set for trial. Respondent refused to proceed with the hearing of the cause on the ground that the affidavit accompanying the complaint was insufficient to give the superior court jurisdiction of the action. In our examination of the questions arising out of the court’s action in this regard it will be necessary to scrutinize some of the provisions of‘the McEnerney Act. (Stats. 1906, Extra Sess., p. 78.) Section 1 of that act provides that in ease of the loss or destruction of public records by flood, fire, or earthquake, an action such as petitioner sought to inaugurate may be maintained by “any person who claims an estate of inheritance” or for life in, and who is by himself or his tenant, or other person, holding -under him, in the actual and peaceable possession of any real property.” Section 2 prescribes the manner of commencing the action, which must be by filing a “verified complaint,” containing, among other things, “a statement of the facts enumerated in section one” of the act, “a particular description of such real property and a specification of the estate, title or interest of the plaintiff therein.” Section 5 provides for filing with the complaint an affidavit of the plaintiff, fully and explicitly “setting forth and showing” certain things, among them being “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.” Section 15 of said act is as follows: “An executor, administrator or guardian, or other person holding the possession of property in the right of another, may main-'

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tain, as plaintiff, and may appear and defend in the action herein provided for.”