Perkins v. Wakeham
Before: Paterson
Synopsis
Dismissal of Appeal — New Trial — Service of Notice of Intention — Unauthorized Acceptance of Service of Statement. — An appeal from a new-trial order will be dismissed, so far as it affects a respondent upon whom the notice of intention to move for a new trial was not served, and who had given no authority to the attorney who accepted service of the statement, which fact was known to the appellant at the time of service.
Quieting Title — Service of Summons by Publication — Validity of Judgment by Default. — A judgment in an action to quiet title to land against a non-resident is not void because of the service of the summons upon him, by publication, while absent from the state, although he does not answer or appear in the action.
Id.—Power of State — Regulating Tenure of Realty — Constructive Service of Summons. — A state has power to regulate the tenure of immovable property within its limits, the conditions of its ownership, and the modes of establishing the same, whether the owner be a citizen or stranger, and may provide for quieting title to land within its limits by constructive service of summons.
Id__Decree Quasi in Rem. — Although a decree quieting title is not in rem, strictly speaking, it fixes and settles the title to real estate, and to that extent partakes of the nature of a judgment in rem.
Publication of Summons — Validity of Code Provision—Proceedings in Personam. — Section 412 of the Code of Civil Procedure, providing for the service of summons upon non-residents, by publication, although general, and in terms applicable to all actions, is not invalid because it includes in its provisions proceedings purely in personam.
Paterson, J. — The appeal from the order denying the motion for a new trial, so far as it affects the respondent town of Santa Ana, must be dismissed.
The ■ notice of intention to move for a new trial was [581]not served on said respondent. There was an attempt to serve the statement, but the attorney upon whom it was served had no authority to accept service, which fact was known to appellant at the time of service.
The motion of respondent the town of Santa Ana to dismiss the appeal from the order denying a new trial is granted, and said appeal, in so far as it affects said respondent, is dismissed. A motion was made on various grounds, also, to dismiss the appeal from the judgment, but as the findings support the judgment, and no error appears on the face of the roll, we deem it best not to pass on the motion to dismiss, but to affirm the judgment.
The court found that in a former action brought by Wakeham against Perkins and others, to determine all adverse claims to the property described in the complaint herein, judgment was entered in favor of said Wakeham, defendant herein, adjudging him to be the owner of the property.
It is claimed by appellant that the decree in the former action to quiet title is in personam, and not in rem, and that as the service of summons was by publication, while he was absent from the state, and as he did not answer or appear, the judgment is void.
If it be true that a state has no power by statute to provide for the determination of adverse claims to real estate lying within its limits, as against non-resident claimants, who can be brought into court only by publication,—if the state in her sovereignty is impotent to protect the title of citizens to her soil against the asserted claims of non-residents who will not voluntarily submit their claims to her courts for adjudication,—great evil must result. Certainty and security in the titles of real estate, and convenient and effective procedure for the determination of individual rights in such property, are essential to the prosperity of the community. If those who cannot be reached by the process of the courts may [582]
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