People v. Greene (74 Cal. 400, 1887)

Searls, C. J.

This is an action .to foreclose the of defendants, obtained by virtue of a certificate of purchase for the north half of section 28, township 9 north, range 32 west, San Bernardino meridian, county of Santa Barbara.

Judgment was rendered in favor of plaintiff. The appeal is from an order made August 17, 1886, refusing to set aside the judgment.

The complaint in the cause is entitled “ People of the State of California v. W. E. Greene, John Doe, Richard Roe et al.”

It proceeds to aver that the defendant (without naming him) located the north half of section 28, township 9 north, range 32 west, San Bernardino meridian, county of Santa Barbara, on the fifteenth day of October, 1868; that on the sixteenth day of November,1868, the said defendant purchased said lands, and received a certificate of purchase therefor, known and numbered as- certificate No. 1191.

The complaint further shows that on the first day of January, 1872, there was due plaintiff, as interest on said certificate of purchase, the sum of ninety six dollars, and avers a publication of the delinquent list with notice, etc., as provided by statute.

There is no averment of ownership of this certificate except as above stated, and no allegation that the owner is unknown.

A summons issued to “ W. E. Greene et al., defendants,” dated September 27, 1872, which recited that this action was brought to obtain a decree foreclosing the interest of defendants “ in certificate of purchase No. 1291.”

The summons was returned on the same day (September 27, 1872) by the sheriff, who certified that “ the same has not been served on the defendants, for the reason that the defendants named in said summons do not reside in this county, and their place of residence is not known to me.”

On the same day an alias summons issued, which is a copy of the former summons except that instead of being entitled People etc. v. W. E. Greene et al., defendants, it is entitled People etc. v. “ W. E. Greene and all unknown owners,” and with the further difference that it recites that the action is brought to obtain a decree foreclosing the interest of defendants in certificates Nos. 1290, 1291, 1395, and 1396, etc.

The action was brought in the district court, and the summons notified and required the defendants to answer within ten days of service within the county (Santa Barbara), within twenty days of service without the county and within the district, otherwise within forty days.

The record fails to show any affidavit for publication .of summons, or order of the judge or court directing such ¡publication.

There is an affidavit of E. B. Bqust as follows:—

“State of California, County of Santa Barbara, ss.

“E. B. Boust, being duly sworn, says he is publisher of the Santa Barbara Times, a newspaper published weekly in the town and county of Santa Barbara, state of California; that a summons, a true copy of which was duly published in said newspaper for four consecutive weeks, to wit, from the second day of October, A. D. 1872, to the second day of November, A. D. 1872.

“E. B. Boust.”

“Subscribed and sworn to before me this thirteenth