People v. Wrin

GRAY, C.

Appeal from an order refusing to set aside a default judgment foreclosing defendant’s interest in certain school lands situated in Santa Barbara County, which judgment was based on a service of summons by publication. The judgment was rendered in July, 1896, and the motion to vacate made in April, 1901.

1. The affidavit for publication of summons is attacked as insufficient in failing to show diligent search for defendant within the state. That part of the affidavit material to the point reads as follows: “That defendant, Michael J. Wrin, cannot, after due diligence, be found within the State of California. . . . That for the purpose of finding defendant, Michael J. Wrin, affiant has placed summons in said action in the hands of the sheriff of the said county of Santa Barbara with instructions to serve the same upon the said defendant, but that said sheriff has been unable to find said defendant and has returned said summons to the clerk of said court with the indorsement that said defendant cannot be found within the county of Santa Barbara. That affiant has inquired of the treasurer of the county of Santa Barbara whether he knew of the residence of said defendant and has been informed by said treasurer that he did not know where the residence of said defendant was, and that affiant has in

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quired o£ other parties who were well acquainted in the county of Santa Barbara and in the state of California, and has been unable to learn from any one the residence of said defendant or where he can be found, and that he has made diligent inquiry to find said defendant, but cannot, after due diligence, find him in this state.” Upon this affidavit the court made the order of publication, and recited and found therein that it satisfactorily appeared that the defendant could not, after due diligence, be found within this state. It may be conceded that this affidavit is in a sense defective, and that the trial court erred in the finding and order based upon it. But mere error of the court could not be taken advantage of on this motion, made nearly five years after the rendition of the judgment. To obtain the desired order vacating the judgment it was necessary that the judgment should be void on the face of the record, or, in other words, it should appear from the record that the trial judge had not jurisdiction to make the order of publication.