People v. Norris

SMITH, C.

The suit was brought to foreclose the interest of defendant in certain lands purchased by him from the state. The service of summons was by publication, and judgment against the defendant was entered by default May 26, 1896. Motion to set aside the judgment was made on June 27, 1902, on the grounds—stated generally— of want of jurisdiction in the court over the subject-matter, or over the person of the defendant. The motion was denied, and from the order denying the motion the defendant appeals.

The principal grounds urged for reversal are, that the affidavit for the order for publication of summons was defective in not showing due diligence.of inquiry on the part of plaintiff as to the whereabouts of the defendant, and that the publication under the order (which was for four weeks only) was insufficient.

The latter point rests upon the assumption that it appears from the record that the defendant was a non-resident' at the time of the publication; and such being the case, it is claimed by the appellant that by the provisions of section 413 of the Code of Civil Procedure the publication should have been for “two months,” as provided in that section. But this contention is disposed of by the explicit provisions of section 3549 of the Political Code, which provide generally that the publication in the class of cases referred to shall be for “four weeks” only. It is no doubt true, as claimed by both parties, that the provisions of the Political Code and those of the Code of Civil Procedure are to be construed together

(People

v.

Applegate,

64 Cal. 229); but in comparing them it seems evident, from the language used and the incongruous nature of their provisions, that they are to be understood as referring respectively to distinct classes—that is to say, to those specifically described in section 3549 of the Political Code, and to those not coming under that description; and that the provisions of section 413 of the Code of

[424]

Civil Procedure are inapplicable as to matters expressly provided for by section 3549 of the Political Code. (Pol. Code, secs. 4480, 4481.) The general rule is established by section 413 of the Code of Civil Procedure, which is but a re-enactment, with a slight change of the rule previously existing. But by section 3549 of the Political Code (with this in the mind of the legislature) it is provided that in the class of cases referred to in that section, publication