People ex rel. Lynch v. Harrison

State School Land—Foreclosure of Certificate of Purchase—Service of Summons—Void Judgment.—A judgment of foreclosure of a certificate of purchase of state school land rendered without personal service upon the holder of the certificate, and upon a publication of summons not based upon any affidavit or order of publication, is void.

Id.—Power to Set Aside Judgment,—The court has no power to set aside a judgment foreclosing a certificate of purchase upon evidence not found in the judgment-roll, where more than six months have elapsed since its rendition.

Id.—Action to Cancel Second Certificate—Admissions of Invalidity of Judgment.—In an action brought by the people upon relation of the holder of a patent from the state to school land, the certificate of which was foreclosed, upon publication of summons, to cancel a second certificate of purchase of the same land issued to another, where the complaint alleges that the holder of the certificate foreclosed never appeared in the foreclosure action, nor was summons ever served upon him personally, nor was an affidavit ever made by any one to obtain an order of publication of summons, nor was any order ever made in said action authorizing the service of summons by publication, and none of these allegations are denied in the answer, upon appeal upon the judgment-roll from a judgment canceling the second certificate of purchase, the judgment of foreclosure appears up..n the judgment-roll appealed from to have been void.

Id.—Impeachment of Judgment — Service of Summons — Proof of Invalidity. — Although a judgment not void upon its face cannot be impeached by evidence showing a want of service of summons, if such evidence is objected to, yet, where evidence is admitted to that effect without objection, or the parties stipulate or admit that there was in fact no service of summons, it is the duty of the court to declare the judgment void, as matter of law, upon the admitted facts.

Id. — Defective Application for School Land — Effect of Curative Act.—An affidavit for the purchase of school land, though substantially defective, filed prior to the curative acts of 1870 and 1872, is validated as against a second certificate obtained subsequent to the passage of those acts.

Id.—Judicial Notice of Curative Acts—Pleadings.—The curative acts of 1870 and 1872 are essentially general acts, of which the court will take judicial notice, and it is not necessary either to allege their existence or prove them at a trial involving their application to a prior defective certificate of purchase.

Id.—Construction of Curative Act—Date of Title of State Immaterial—Contract of Purchase. —The fact that the title to the land applied for did not vest in the state until a subsequent listment of the land to the state is not an element entering in any degree into the construction of the curative act of 1870, which validates a contract of purchase with the state, regardless of the time of the acquisition of its title.