McDonald v. Cooper

• Decision Date: 28 November 1887
• Citation: 32 F. 745
• Parties: MCDONALD v. COOPER.
• Court: U.S. District Court — District of Oregon

32 F. 745

MCDONALD v. COOPER.

United States Circuit Court, D. Oregon.

November 28, 1887

Syllabus by the Court

An affidavit for an order for service of summons by publication must contain some evidence having a legal tendency to prove that the defendant could not be found in the state after due diligence, and the mere assertion of the fact is insufficient.

But a statement of facts as to residence and actual abode of the defendant, which shows, beyond a peradventure, that any search for him within the state would be unavailing, is sufficient.

And where it is necessary to show that the defendant has property in the state, the statement thereabout should be direct, and specify the property.

A summons published six times in a weekly newspaper is thereby served on the defendant after 42 days from the date of the first publication thereof.

W Scott Beebe, for plaintiff.

Julius C. Moreland, for defendant.

DEADY J.

This action is brought by Angus McDonald, a citizen of California by his guardian, D. C. McDonald, against William Hammond, J Abbott, G. M. Haines, and R. Clinton, citizens of Oregon, to recover possession of lots 1 and 2, in block 120, in Stephens' addition to East Portland.

The answer of the above-named defendants admits they are in possession of the premises, but only as the tenants of George Cooper, without giving his place of residence, who they then volunteer to state is the 'owner' of the premises, and ask that he may be substituted as defendant.

A person in possession of real property, as the tenant of another, may decline to make a defense to an action to recover possession of the same, and plead 'that he is in possession only as tenant of another, naming him and his place of residence. ' But he is not authorized to say that such other is the 'owner' of the premises, or to ask that he may be substituted as defendant. Having declined the controversy, he should be silent as to the merit or management of it.

The landlord may thereupon apply to be made defendant in the case; and if he does not do so, he may be made defendant on motion of the plaintiff. Code Civil Proc. Sec. 314.

Within 10 days thereafter the defendant, George Cooper, appeared and answered the complaint, denying all the material allegations therein. The answer also contains a defense, denominated therein 'a further and separate answer,' to the effect that Cooper is the owner in fee-simple of the premises, and entitled to the possession thereof. The plaintiff replied to this defense, denying the same.

The case was submitted to the court, without the intervention of a jury, on an agreed state of facts, from which it appears that the plaintiff was 11 years old last July, and is a citizen of California, and D. C. McDonald is his guardian ad litem; that the plaintiff is the only child of A. C. McDonald and Hortense, his wife, the former of whom died intestate in Multnomah county and no administration was ever had on his estate; that on March 2, 1878, the deceased being the owner of the premises, executed with his wife, a mortgage thereof to B. Boeschen to secure the payment of $175, with interest and that only $50 thereof was paid; that on August 26, 1879, said Boeschen commenced a suit in the circuit court for the county of Multnomah against said Hortense and . . . McDonald, as the only child and heir of the deceased, to enforce the lien of said mortgage and the payment of the sum thereby secured; that in said suit a decree was given for the payment of the sum found due the plaintiff, and for the sale of the premises to satisfy the same, with costs, in pursuance of which they were sold by the sheriff to said Boeschen for sufficient to satisfy the decree; that said sale was duly confirmed by the court, and a deed of the premises made by the sheriff to the purchaser, under whom the defendant holds by a chain of mesne conveyances duly executed.

It is also stipulated that if the proceedings in said suit by Boeschen had the effect to divest the plaintiff of his right to the premises, the same is now vested in the defendant.

The invalidity of the decree on which the property was sold is urged on various grounds, either of which, it is claimed, is sufficient to show that the court had no jurisdiction to make the same.

The summons in the case was served by publication. The affidavit on which the order of publication was made was sworn to on August 25, 1879, and the suit was commenced by the filing of the complaint on the twenty-sixth of the same month. On the subject of the residence of the defendants, and the diligence used to find them within the state, the statement in the affidavit is as follows: 'They (the defendants) cannot be found within the state of Oregon, but both reside in San Jose, California, and that is their post-office address. ' As to whether the defendants, or either of them, had any property within the state at the commencement of the suit, the statement of the affidavit is that the plaintiff therein 'has a good cause of suit against defendants to foreclose a certain mortgage on real property situate * * * in Oregon, executed by the defendant, Hortense McDonald, and her then husband, A. C. McDonald.'

The suit was commenced against Hortense McDonald and . . . McDonald, and the summons is so entitled and addressed. The order for publication does not find that the defendants, or either of them, had any property in this state at the commencement of the suit, or that any diligence was used to find them therein, but simply states 'that personal service cannot be had upon said defendants, or either of them, in this state,' and directs that service of the summons be made on each of the defendants by the publication thereof in a certain newspaper, weekly, for six successive weeks, 'and that a copy of the complaint and summons be deposited in the post-office, directed to each of said defendants at San Jose, California, their post-office address.'

It appears from the record that the summons was published as directed, and a copy of the complaint and summons was timely deposited in the post-office at Portland, addressed to Hortense McDonald, at San Jose, California, and another to . . . McDonald in care of Hortense McDonald.

The contention of the plaintiff is that the court never acquired jurisdiction of the defendants, and therefore the decree directing the sale of the premises is null and void. Several of the objections will not be considered,-- as that the affidavit for the order of publication was made the day before the commencement of the suit, that the plaintiff was sued as . . . McDonald, and the summons was so issued and published, and that the order of publication did not direct the copy thereof to be deposited in the post-office as required by Code Civil Proc. Sec. 56, 'forthwith.' The objection that the decree was given without the publication of the summons, as directed in the order, is not well founded. The summons was published six times in six successive weeks as directed, and more than 42 days elapsed from the first publication to the entry of the decree.

And finally, it is contended that the order of publication is void on either of the following two grounds: (1) The facts stated in the affidavit do not tend to show that any diligence was used to find the defendants within the state, or that they could not have been found and served therein. (2) The facts so stated do not tend to show that the defendants, or either of them, then had any property within the state.

Code Civil Proc. Sec. 55, provides that when the service of a summons cannot be made as provided in section 54,-- personally or at his usual place of abode,-- 'and the defendant, after due diligence, cannot be found within the state, and when that fact appears by affidavit to the satisfaction of the court or judge thereof, * * * and it also appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in this state, such court or judge * * * shall grant an order that the service be made by publication of a summons * * * when the defendant is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action.'

The order of publication in question was made under this section. That diligence has been used to find the defendant within the state must appear from the affidavit, and a mere statement or assertion therein that the party is a non-resident thereof is not sufficient. Nor is such statement or assertion that diligence has been used, a compliance with the statute. The affidavit must contain some evidence of the ultimate fact, besides the assertion of the affiant, on which the judicial mind may act in granting the order. And however slight and inconclusive this evidence may be, if it has a legal tendency to prove the diligence, and that the defendant could not be found in the state, it is sufficient to give the court jurisdiction, and sustain the order against a collateral attack. But where there is no evidence of such diligence except the bald assertion of the fact, or that of non-residence, the order is void, and the court does not acquire jurisdiction. Rickertson v. Richardson, 26 Cal. 153; Forbes v. Hyde, 31 Cal. 350; Carleton v. Carleton, 85 N.Y. 314; Neff v. Pennoyer, 3 Sawy. 288.

In Carleton v. Carleton, supra, it was held that an affidavit for the service of a summons by publication was insufficient wherein it was stated 'that defendant has not resided in New York since March, 1877, and deponent is advised and believes is now a resident of San Francisco, California,' because it was merely an allegation of non-residence, and did not tend to prove that the defendant could not, after due diligence be found...