Martin v. Parsons

By the Court : The appeal is by the plaintiff on the judgment-roll, and the only question is whether the findings support the judgment. The action is to quiet the plaintiff’s title, founded on a sheriff’s deed under a sale for taxes; and the findings show that while the proceedings in the tax suit were pending, the plaintiff was the Court Commissioner, and the decree under which the land was sold was drafted by him or under his supervision. It further appears that in point of fact the court never acquired jurisdiction to render the decree, for want of a due service of process; but the decree on its face recites that process had been duly served, and that all parties in interest had been duly summoned.

By the act of April 4, 1864 (Statutes 1863-4, p. 399), the duties of the Court Commissioner in such cases are prescribed. It provides that in tax suits, where the summons has been duly served and no answer has been filed within the time limited, “ default shall be deemed made by the de[501]fendants, and without entry thereof by the clerk, the same shall be deemed referred, upon the plaintiff’s motion, without entry of such motion, or any order to the Court Commissioner, who shall ascertain the amount of taxes due thereon, and also the dues of each officer, and report, by drafting a form of decree in the decree-book, specifying the amount of taxes due, etc., * * * which form, when signed by the judge, either in term or in chambers, shall be and remain the judgment of the court.” It was under a decree of this character, prepared by the plaintiff as Court Commissioner, or under his direction, that the land in contest was sold for taxes and purchased by the plaintiff at the tax-sale. It is clear that the duties of the Court Commissioner did not commence until the summons was duly served in one of the methods provided by law. Until then he had no jurisdiction to draft the decree, or perform any act in the premises. His first duty, therefore, was to ascertain whether the process had been duly served. But the findings show that he made no examination for that purpose, but confided to one D. E. Alexander the business of drafting the decree. It further appears that Alexander had before him no proof of service, except an affidavit made by the District Attorney, which was never filed in the case, was not attached to a copy of the summons, and would have applied to any other case as well. If, however, it had appeared on its face to have been made in that case and had been duly filed, annexed to a copy of the summons, it would have failed to show a service of the process, upon an unverified complaint as that was. It is obvious from the findings that the plaintiff was guilty of gross negligence in drafting the decree without any previous attempt to ascertain the jurisdictional facts, on which his power to act depended. It is immaterial, in this case, that he acted, as the court finds, in good faith and without any fraudulent intent. The case was here on a former appeal (49 Cal. 94); and in the opinion on that appeal we said: “It will be observed that fraud in fact is not, by direct averment, imputed to the plaintiff; but if the allegations of the cross-complaint be true, he has, through his own laches or neglect, obtained an unconscion