Moss v. Mayo

Crocker, J. delivered the opinion of the Court—Horton, J. concurring.

The defendant was a purchaser of a certain lot in the City of Sacramento owned by the plaintiff, at a Sheriff’s sale, under a judgment rendered for taxes against certain persons, not including the plaintiff (the lot being assessed to “unknown owners”). He obtained a Sheriff’s deed under his purchase, and also a writ of assistance to be put in possession of the property. The plaintiff then brought this suit to enjoin him from enforcing the writ of assistance, averring that she resided in the City of San Francisco, and her agent at Sacramento had by mistake paid taxes on another lot that she did not own, instead of this one which she did own; that she had no notice of the tax suit or the proceedings under it, and that no summons had been served according to law in that suit to give the Justice of the Peace who rendered the judgment jurisdiction of the action. She avers readiness to pay to the plaintiff all expense that he has incurred, upon his releasing the claim. The Court denied the injunction; sustained a demurrer to the complaint, and rendered a judgment for the defendant, from which order and judgment the plaintiff appeals.

The suit before the Justice for the delinquent taxes was brought in the name of “ The People of the State of California v. John Doe 232, M. A. Parker et al.” and was commenced June 22d, 1861. An affidavit was made and filed by D. C. Thomas, who styled himself one of the attorneys for the plaintiff, in which several suits for taxes are described, including the one under consideration; in which it is stated that the property described in the several suits was assessed to unknown owners; that neither the plaintiff nor their attorneys knew the true owners of any of the several tracts, or their places of residence, and therefore the fictitious name of John Doe had been used as an alias for the true owner; and that he had been informed and believed that those whose true names are mentioned in the several actions were the true owners, or had an interest [424]in the property named in the suits in which they were made parties. The Justice thereupon entered a general order in his docket in the form of a summons directed to the persons thereinafter named, and to all owners and claimants, known and unknown, of any of the lands thereinafter described; and after reciting that Cornelius Cole, District Attorney of the County, had filed divers complaints in his Court to recover the taxes levied upon property in the City of Sacramento and assessed to unknown owners, and asking for a decree and order to sell the premises described in said complaints to satisfy said tax lien; referring to the original complaints on file, there followed a description referring to the; several suits, that relating to the one under consideration being as follows: “ For $29.44 against John Doe 232, Mary A. Parker, Catherine M. Hardenbergh, and the north seventeen feet of lot Ho. 6, between N and 0, and Front and Second streets.” The order then recites the affidavit made by Thomas, and states that by virtue and in pursuance of the provisions of the sixth section of an act passed April 3d, 1860, for the collection of delinquent taxes, the defendants named in the several suits, and all owners and claimants, known and unknown, and each of said tracts of'land, were thereby summoned to appear before the Justice at a certain day therein named, to answer to the plaintiff, who sues to recover from them the sums mentioned in connection with their names, and for a decree and sale of their interest in the property to satisfy the lien for taxes; and that if they failed to appear and answer, the plaintiff would take a judgment against them as prayed for in the complaints on file in his office. The Justice farther ordered and directed that summons in sajd. causes be served by publishing the whole of this order one time per week for three months in the Daily Bee, a newspaper published in said county. This whole order was published in the Bee as provided for, which was all the service of summons in the case, and judgment was rendered thereon in favor of the plaintiff, on the day named, under which judgment the defendant purchased.