Cargile v. Silsbee

ANGELLOTTI, J.

Plaintiff was originally the holder of a certificate of purchase for certain state school land, issued November 6, 1889, but because of her non-payment of interest on the balance due of the purchase price, such certificate was canceled and annulled, and all plaintiff’s rights in the land thereunder foreclosed, by. a decree of the superior court of San Diego County, given and entered in November, 1896, in an action brought by the people of the state of California against her. In that action judgment was given by default, she having failed to appear after service had by publication of summons. Subsequently, in the year 1899, defendant made his application for the purchase of said land, and regularly

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acquired a certificate of purchase therefor, which he still holds. In 1902 plaintiff first actually heard of defendant's claim to the land, and filed in the office of the surveyor-general her notice

of

contest and demand for a trial of the rights of the parties in the superior court of San Diego County. The surveyor-general made an order of reference accordingly. Plaintiff then filed her complaint against defendant in this proceeding, by which she attacks the judgment given in the foreclosure proceeding against her, claiming that the same is void, and sets up her rights under the certificate of purchase originally issued to her, and asks that the judgment annulling her certificate be vacated and set aside, that her certificate be adjudged valid, and that defendant’s certificate be adjudged null and void. A demurrer to her third amended complaint having been sustained, and plaintiff having elected to stand upon the same, judgment went for defendant. This is an appeal by plaintiff from said judgment.

It is manifest that if the judgment given in the foreclosure action is not void on its face, and is not vacated and set aside, the complaint shows that plaintiff has no right whatever in regard to the land, and that defendant is entitled to purchase the same. It is urged that the judgment is void on its face, the contention in this respect relating entirely to the service of the summons in the action in which such judgment was given, the principal point made being that the affidavit for publication of summons did not state sufficient facts to give the court jurisdiction to order service made by publication. The question as to the sufficiency of a similar affidavit to give the trial court such jurisdiction has been discussed by this court several times in cases of the same character as this and the affidavit held sufficient. Every contention made by plaintiff in support of her claim that the judgment under consideration is void upon its face has already been answered by decisions of this court, some of which, it should be said, have been rendered since the institution of this action. (See