White v. Clarke
Before: Harrison
Synopsis
Submission of Controversy—Agreed Case—Subject of Civil Action. There can be no proper submission of a controversy upon an agreed case, under section 1138 of the Code of Civil Procedure, unless the agreed case shows a question in difference between the parties which might he the subject of a civil action.
Id.—Title to Lands—State Patent—Claim of United States Homestead.—An agreed case, showing that the defendant has acquired title to certain lands under a state patent, and that the plaintiff, being qualified, has duly claimed the land as a homestead under section 2289 of the Revised Statutes of the United States, giving reasons for such claim and for the invalidity of the patent, many of which are based upon facts not set forth in the agreed case, and stipulating that if the patent is valid the title should be sustained, whereas, if it is void, the plaintiff's claim to enter the land as a homestead is proper, but not showing that either of the parties is in possession or seeks to gain or withhold the possession, nor stating any facts showing that plaintiff has any right to question the patent under which defendant claims title, does not state any controversy which is the subject of a civil action in the courts of this state.
Id.—Insufficient Affidavit—Reality of Controversy—Good Faith.— An affidavit for the submission of a controversy without action must' show that the controversy is real, and that the proceedings are in good faith to determine the rights of the parties; and an affidavit which, instead of showing that the controversy is. real, states that “the statement of the case” is “a real controversy,” and, instead of stating that the proceedings are in good faith, states that the “contention” is in good faith, is insufficient to authorize the court to entertain the submission.
Harrison, J. This proceeding purports to have been instituted in the superior court of the city and county of San Francisco, under section 1138 of the Code of Civil Procedure, for the purpose of obtaining a judg[426]ment of the court upon an agreed case. The document upon which the judgment was sought is prefaced by the statement: “ The plaintiff and the defendant agree to submit this controversy without action, and present the following facts”; and, after setting forth certain facts, concludes: “ Wherefore, the plaintiff, as well as the defendant, agrees to submit this controversy, without action, upon the foregoing statement. Judgment of the court,is respectfully prayed.” It is stated in the “agreed case” that the defendant has acquired title to certain lands in San Francisco which are not within the boundaries of the patent issued to the city by the United States under a patent issued by the governor of the state January 24, 1881, and, as impairing the effect of this fact and the sufficiency of the title thus acquired, is the statement: “ That on January 12,1895, the plaintiff being qualified to claim a homestead under section 2289 of the Revised Statutes of the United States, duly claimed said land as a homestead,” together with a statement in the form of an argument on behalf of the plaintiff, in which are given various reasons why the patent issued to the defendant is invalid, many of which are based upon the existence of facts which are not set forth in the agreed case. The document also contains a stipulation that, if the patent is valid, the title of the defendant shall be sustained, whereas, if it is void, the plaintiff’s claim to “ enter the land as a homestead ” is “ proper.” Following the foregoing “ agreed case” are certain stipulations of other facts signed by persons purporting to be attorneys for the respective parties to the controversy; and at the end thereof is the following affidavit:
“Now comes James White, the plaintiff, and J. F„ Clarke, the defendant, who, being duly sworn, deposes and says that the above and the foregoing statement of the case containing the facts above stated is a real controversy, and the contention is in good faith to determine the rights of the parties. James White.
“ J. F. Clarke.
[427]
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