77 P. 998

THE PEOPLE, Respondent, v. SMITH NORRIS, Appellant.

L.A. No. 1336.Supreme Court of California, Department One.
August 17, 1904.

APPEAL from an order of the Superior Court of San Diego County denying a motion to set aside a judgment. E.S. Torrance, Judge.

The facts are stated in the opinion.

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F.D. Brandon, and Edwin A. Wells, for Appellant.

Cassius Carter, District Attorney, U.S. Webb, Attorney-General, and George A. Sturtevant, Deputy Attorney-General, for Respondent.

Victor E. Shaw, Amicus Curiae, for Respondent.

SMITH, C.

The suit was brought to foreclose the interest of defendant in certain lands purchased by him from the state. The service of summons was by publication, and judgment against the defendant was entered by default May 26, 1896. Motion to set aside the judgment was made on June 27, 1902, on the grounds — stated generally — of want of jurisdiction in the court over the subject-matter, or over the person of the defendant. The motion was denied, and from the order denying the motion the defendant appeals.

The principal grounds urged for reversal are, that the affidavit for the order for publication of summons was defective in not showing due diligence of inquiry on the part of plaintiff as to the whereabouts of the defendant, and that the publication under the order (which was for four weeks only) was insufficient.

The latter point rests upon the assumption that it appears from the record that the defendant was a non-resident at the time of the publication; and such being the case, it is claimed by the appellant that by the provisions of section 413 of the Code of Civil Procedure the publication should have been for “two months,” as provided in that section. But this contention is disposed of by the explicit provisions of section 3549 of the Political Code, which provide generally that the publication in the class of cases referred to shall be for “four weeks” only. It is no doubt true, as claimed by both parties, that the provisions of the Political Code and those of the Code of Civil Procedure are to be construed together (People v. Applegate, 64 Cal. 229); but in comparing them it seems evident, from the language used and the incongruous nature of their provisions, that they are to be understood as referring respectively to distinct classes — that is to say, to those specifically described in section 3549 of the Political Code, and to those not coming under that description; and that the provisions of section 413 of the Code of

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Civil Procedure are inapplicable as to matters expressly provided for by section 3549 of the Political Code. (Pol. Code, secs. 4480, 4481.) The general rule is established by section 413 of the Code of Civil Procedure, which is but a re-enactment, with a slight change of the rule previously existing. But by section 3549 of the Political Code (with this in the mind of the legislature) it is provided that in the class of cases referred to in that section, publication “may be made” in a different manner, both as to time and in other respects. In People v Applegate, 64 Cal. 229, and cases following it, the question was as to the applicability of the provision of the Code of Civil Procedure relative to service of summons in regard to those matters concerning which section 3549 of the Political Code is silent.

As to the showing of diligence, the affidavit was substantially similar to that involved in People v. Wrin, 143 Cal. 11, and, like it, comes within the rule laid down in Rue v. Quinn, 137 Cal. 651. The present case differs from People v. Wrin only in this, that we have here the affidavit of appellant showing that his post-office address was inserted in his application to purchase as required by the rules of the land-office, and that he has not since changed his residence — and other facts. But the judgment being valid on the face of the record, neither this or other evidence dehors the record was admissible to impeach it (People v. Davis, 143 Cal. 673; People v. Thomas, 101 Cal. 571 People v. Temple, 103 Cal. 453; People v. Harrison, 107 Cal. 544 Butler v. Soule, 124 Cal. 69.) The rule is different in cases of direct attack on a judgment by appeal or motion under section 473
of the Code of Civil Procedure or otherwise in the line of the proceedings in the case. But though an attack of the kind now before us may in one sense of the term be said to be direct, it is in the technical sense regarded as collateral, — that is, it is a proceeding aside from, or outside of, the regular proceedings in the case. Or, if we should prefer a different definition, then we must hold that the same rule applies t direct attacks of this kind as to collateral attacks. Nor, though it be admitted for the purposes of the decision that there was a rule of the land-office requiring applications to be accompanied by the post-office address of the applicant, and that the court will take judicial notice of the rule, yet the case would not be affected. The same point was involved in People v. Wrin,

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143 Cal. 11, and though not discussed in the briefs, was considered.

It is objected also that the personal judgment for costs of suit and publication is without jurisdiction; which may be admitted. But this part of the judgment is long since outlawed, and the validity of the judgment otherwise is not affected. Other objections made are, that the summons was defective in stating “the nature of the action”; that the register had no power to include in the delinquent list more than one year’s interest — that is to say, more than the last of the five years’ interest in default; that the judgment failed to reserve in the defendant, in explicit terms, the right to vacate it upon the terms allowed by sections 3550 and 3551 of the Political Code, or to redeem within a year, as provided by the act of 1881 (Stats. 1881, p. 65); that the complaint is defective; and finally that “the judgment is not sustained by the facts found,” — i.e. by the facts recited in the judgment. But it will be sufficient to say of these contentions that we do not regard any of them as well taken.

We advise that the order appealed from be affirmed.

Chipman, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the order appealed from is affirmed.

Angellotti, J., Shaw, J., Van Dyke, J.

Hearing in Bank denied.

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