Gould v. Lanterman

Foote, C. This was a contest as to which of two individuals was entitled to purchase land of the state of California.

The complaint was demurred to, and the demurrer overruled; a trial was then had before the court without a jury, and judgment was rendered for the plaintiff; from which, and an order denying a new trial, the defendant appeals.

He contends that the court had no jurisdiction to try the cause, because the certificate of the surveyor-general of the state, by virtue of which only, as he alleges, could such jurisdiction be obtained, was insufficient. A similar certificate in all respects was held by this court in Eads v. Clarke, 68 Cal. 481, to fully meet all the requirements of the statute, and the reasons for such decision as there given it is not necessary here to repeat.

It is further contended that as the complaint stated the surveyor-general had approved the defendant’s application before the plaintiff made his, that such fact, showing judicial action by that officer in favor of the defendant, barred any right of the plaintiff to have his contest determined by any other court, and hence his complaint did not state facts sufficient to constitute a cause of action.

[249]Inasmuch, however, as the complaint also and in the proper connection charged such action of the surveyor-general was brought about by the fraudulent representations made to him by the defendant, and that the latter had never been an actual settler upon the land in controversy, or entitled to purchase it, and that the surveyor-general, when a second application was made for the land, referred the matter as between the parties making the first and second applications for a contest by proper certificate to the proper court, we are of opinion that such contention is not well founded. '-*

And we cannot well perceive how the action of the surveyor-general in granting an application upon a statement of facts made by the defendant alone would bar the plaintiff, who afterwards made an application to purchase the land, of a statutory right to have the contest between him and the defendant settled by the proper court.

The jurisdictional act of the land officer in such a case could not by granting such an application bind one who was not a party to a proceeding so entirely ex parte.

To hold to such a doctrine as that for which the defendant contends would be to nullify the statute, and to enable the surveyor-general, as ex officio register of the land-office, to oust the Superior Courts of the state of their jurisdiction over such contests as the one in hand, when there is no law which gives him such power, or repeals the statute allowing such a contest.