Ligare v. California Southern Railroad

California Supreme Court Jun 19, 1888 No. No. 12346Published

Before: Hayne

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Holding. The court held that the service of summons by publication was sufficient to sustain a default judgment in a condemnation proceeding, finding that the affidavit and procedural steps met the requirements for a collateral attack.

Issues

Whether a summons signed with a printed name and court seal is valid.
Whether an affidavit for publication must independently state a cause of action if a verified complaint is on file.
Whether an affidavit for publication sufficiently demonstrates due diligence to support a judgment on collateral attack.
Whether an affidavit for publication must state that the defendant's residence is unknown when the basis for publication is due diligence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the affixing by the clerk of the seal of the court to a form to which was appended his printed name was an adoption of the printed signature which for the purpose in hand was sufficient.”

“The affidavit is not required to follow the language of the statute, but is to state the evidence from which diligence can be inferred.”

“The affidavit in question brings the case within the “due diligence” clause, and was sufficient without the statement as to knowledge of the residence.”

Synopsis

Summons — Signature of Clerk. —The affixing of the seal of the court is a sufficient adoption by the clerk of a printed signature.

Id.—Affidavit for Publication — Showing that a Cause of Action Exists — Reference to Document on File. —The fact that a cause of action exists may he shown either by affidavit or by the verified complaint on file'. If the complaint be not verified, the affidavit may refer to and adopt its statements. In such a case, the oath to the affidavit is an oath to the contents of the document referred to and adopted.

Id. — Showing of Diligence — Collateral Attack. — The affidavit should not merely follow the language of the statute, but should set forth the evidence from which diligence can be inferred. And if the evidence be such that the judge might have been satisfied from it, although not conclusive, the showing will be held sufficient on a collateral attack. Instance.

Id. — Showing whether the Defendant’s Place of Residence is Known. — The requirement that the affidavit shall state whether or not the defendant’s place of residence is known applies only in cases of nonresident or absent defendants.

Id. — Order of Publication — On What It must be Based. —If the affidavit is sufficient, and the order recites that the judge is satisfied therefrom that a case for publication exists, it does not matter that there is also a recital that other evidence was read and considered. Instance.

Hayne, C. The sole question in this case is as to the sufficiency of a service of summons by publication to sustain a judgment by default in a proceeding to condemn land. The particulars in which the publication proceedings are supposed to be insufficient are the following: —

1. It is said that the summons was not signed by the clerk. The statute requires that it should be so signed. (Code Civ. Proc., sec. 407.) But we think the affixing by the clerk of the seal of the court to a form to which was appended his printed name was an adoption of the printed signature which for the purpose in hand was sufficient. (See Williams v. McDonald, 58 Cal. 529; Hancock v. Bowman, 49 Cal. 413.)

2. It is contended that the affidavit for publication does not show that a cause of action existed against Ligare, the plaintiff here. The statute requires that it must appear “by such affidavit, or by the verified complaint on file, that a cause of action exists.” (Code Civ. Proc., sec. 412.) It will be observed of this provision that it does not require the fact to appear in both ways. It is sufficient if it appear in either way. If there is a verified complaint on file, the affidavit may be silent on the subject. And, on the other hand, if the fact appears from the affidavit, it does not matter that the complaint is not verified. It appears that the original complaint was verified, but that the fictitious names of certain other defendants were ordered stricken out, and the real names inserted, and that a document purporting to be an amended complaint, which was the same as the original in all respects except as to the said names, was filed, but was not verified. The affidavit refers “to the verified complaint on file herein, and which is made part and portion of this affidavit.”

Inasmuch as the so-called amended complaint made no change in the issues, it is somewhat doubtful whether, so far as this party is concerned, it superseded the original. [612](See Brock v. Martinovich, 55 Cal. 516; Tormey v. Pierce, 49 Cal. 306.) But if we assume that it did, we nevertheless think that the objection is not well taken. The affidavit could refer to any document on file, and adopt its contents. In such case, the oath to the affidavit is an oath to the truth of the document referred to. The affidavit here did refer to the original complaint and adopt its contents, and this complaint stated a cause of action. The fact that a cause of action existed, therefore, appeared from the affidavit. And, as above shown, it made no difference that the document which was then performing the functions of a complaint was not verified.

Ligare v. California Southern Railroad

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