Sharp v. Salisbury

GRAY, C.

The plaintiff held a certificate of purchase for a certain section of school land in San Diego County. Suit was brought against her by the state to foreclose all her interest and annul her certificate of purchase because of nonpayment of interest on the balance due of the purchase price

[722]

of said land. A decree was rendered therein against her canceling said certificate. Thereafter a certificate of purchase for the same land was issued

by

the state surveyor-general to defendant. A contest was made in the land-office by plaintiff against this second certificate and the matter referred by the surveyor-general to the superior court for determination. A purported complaint was filed by plaintiff, service had on defendant, arid the default of the latter entered for failure to answer. Subsequently an amended complaint was filed. The plaintiff then offered to make proofs to establish the allegations of her amended complaint, but the court refused to permit her to do so for the reasons that the amended complaint failed to state a cause of action, and also “that the order of reference made by the surveyor-general does not give this court jurisdiction of the issues tendered by said complaint.” The plaintiff refused to amend further, and judgment was entered against her that she take nothing, and that the case be dismissed, from which judgment she appeals.

We think the action of the court should be upheld for the reason that the complaint fails to state a cause of action. The judgment-roll in the foreclosure proceeding is attached as an exhibit to the complaint and made part thereof. So far as we can learn from an inspection of this roll, the judgment in the foreclosure proceeding is valid. Indeed, appellant fails to point in her brief to anything on the face of this roll that could be claimed to render the judgment void. We understand appellant, however, to contend that the facts stated in the complaint (which must be here admitted as true) show that the foreclosure judgment was obtained by fraud on a false affidavit for publication of summons. The allegations of the complaint in this regard are to the effect that the affiant who made the said affidavit, the deputy district attorney, did not in fact make diligent search or inquiry to ascertain. the residence or whereabouts of the defendant in the foreclosure suit; “that if he made any search or inquiry at all thereof, the same was a sham and pretended search, and not made in good faith,” etc. The affidavit for publication need not be here quoted. It was made part of the complaint, and it is sufficient to say that it was very similar to the affidavit in