County of Yolo v. Knight

California Supreme Court Aug 25, 1886 No. No. 11190Published

Before: Belcher

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Holding. The court held that the default judgment was void for lack of jurisdiction because the affidavit for publication failed to state the probatory facts necessary to establish a cause of action, and the attempted service of process in England was not supported by the required affidavit.

Issues

Whether an affidavit for publication of summons that merely repeats the language of the statute without stating supporting probatory facts is sufficient to confer jurisdiction.
Whether a statement in an affidavit that a plaintiff has a 'good cause of action' constitutes a sufficient statement of fact to support an order for publication.
Whether a certificate of service by a foreign notary public, rather than an affidavit, constitutes valid proof of service under the Code of Civil Procedure.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“An affidavit which merely repeats the language or substance of the statute is not sufficient.”

“The statement in the affidavit that the plaintiff has a good cause of action against the defendant, and that the defendant is a necessary and proper party thereto, is a statement of opinion or belief, and not of facts.”

“As the attempted service in England is not shown by affidavit, it must be disregarded.”

Synopsis

Summons—Publication—Affidavit fob—Statement of Facts in — Jurisdiction — Judgment.—Under section 412 of the Code of Civil Procedure, an affidavit for the publication of summons against a nonresident defendant, in a case where the complaint is unverified, must state the facts showing the existence of a cause of action against the defendant, and that he is a necessary or proper party to the action; otherwise the court does not acquire jurisdiction of the defendant hy reason of the attempted service by publication, and a judgment by default founded thereon is void.

Id. — Statement of Legal Conclusion Insufficient. —In such a case, an affidavit which merely states that the plaintiff has a good cause of action against the defendant, and that he is a necessary and proper party defendant, is insufficient.

Id.—Action to Condemn Land—Public Highway—Proceedings before Supervisors.—In an action to condemn land for a public highway, an affidavit for the publication of summons, where the complaint is unverified, must show that the proceedings before the board of supervisors have been had as provided in sections 2698 to 2708 of the Political Code.

Id.—Appeal from Judgment—Recitals in Findings—Defendant not Concluded by. — On an appeal from a judgment by default, rendered after an insufficient service of summons by publication, the defendant is not concluded by a recital in the findings that due proof had been made that the summons was legally served upon him, and his time for answering had expired.

Id,—Proof of Service—Certificate of Notary Public.—The service of a summons and complaint by a notary public must be proved by his affidavit) his mere certificate is insufficient.

Belcher, C. C. This is an appeal from a judgment by default condemning certain land owned by the defendant, for the purposes of a public ‘highway.

Only one question need be considered, and that relates to the jurisdiction of the court to enter the judgment.

When the complaint was filed the defendant was in England. A summons was issued, and returned by the sheriff, with his certificate that he had been unable to find the defendant in Yolo County. Thereupon the attorney for plaintiff made an affidavit, and upon it asked and obtained an order for the publication of the summons. The affidavit stated that the complaint had been filed, and a summons issued thereon; that the ac[433]tion was brought for the purpose of acquiring the right of way for a public road and highway across and over the lands of the defendant; that the defendant was then residing at Sleaford, Lincolnshire, England; and then proceeded as follows:—

“ That affiant is the attorney of record for said plaintiff, and is familiar with and knows the facts in this case; that the defendant E. Knight is the owner in fee of the lands sought to be taken in this action; that the plaintiff has a good cause of action in this suit against the said defendant, and that the said defendant E. Knight is a necessary and proper party defendant thereto.”

•The order directed the publication of the summons for the requisite time, and it was published accordingly. It also directed that a copy of the summons and complaint be forthwith deposited in the post-office, postpaid, directed to the defendant at his said place of residence; and this was done. _

"Was this affidavit sufficient to authorize the court or judge to make the order ? If not, then there was a want of jurisdiction, and the order and publication were void.

The code provides that “where the person on whom the service is to be made resides out of the state, .... and the fact appears by affidavit to the satisfaction of the court or a judge thereof, and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or judge may make an order,” etc. (Code Civ. Proc., sec. 412.)

In Ricketson v. Richardson, 26 Cal. 153, the court, speaking of the corresponding sections of the old practice act, says: “An affidavit which merely repeats the language or substance of the statute is not sufficient. Unavoidably the statute cannot go into details, but is compelled to content itself with a statement of the ultimate facts, which must be made to appear, leaving the

County of Yolo v. Knight

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