GEORGE F. SHARP v. E. DAUGNEY, CORA WELLER, ANTOINETTE JAMBOIS, and L. CADIZ, 33 Cal. 505

By the Court, Shaeter, J.: Ejectment for a lot in the City and County of San Francisco. Both parties claim under B. F. Coons—the plaintiff by virtue of a deed made to him by Gorham, assignee of Coons in insolvency, and the defendant under a Sheriff’s deed to him as purchaser at a foreclosure sale had in Daugney v. Coons. The trial was by the Court, and the appeal is from the judgment. There are three grounds of appeal stated in the specification, but the only one that can be availed of by the appellant is the first, viz: that the Court erred in excluding the judgment roll in the foreclosure suit of Daugney v.

Coons, the order of sale and the Sheriff’s deed to the defendant herein. There is another question, however, relating to the validity of the defence of the Statute of Limitations, pleaded in the action, of which, as the point is upon the judgment roll, we can take notice, notwithstanding it is not named in the specification. First—As to the Statute of Limitations.

The statement of the defence is as follows: “ And for a further answer they say that the plaintiff is not entitled to have or maintain this action because the plaintiff was not seized or possessed of the real estate described in said complaint within five years next before the commencement of this action.” This statement is fatally defective. There is no averment that the plaintiffs’ predecessor or grantor was not possessed within five years, nor is an adverse possession alleged for any period of time anterior to the action.

But aside from these substantial defects in the plea, the facts as found or agreed do not furnish the material for a defence under the statute. The Court has found simply that the defendants were in possession at the date of the action, and that they wrongfully withheld the same from the plaintiff. It was admitted by the plaintiff that the defendant had been in possession of the property through his agents ever since the 8th of December, 1855.

But in the absence of any admission or finding to the effect that the property was held adversely, it must be presumed, at least, in favor of the judgment, that this holding was in subordination to the legal title. (Wood’s Dig., p. 46, Sec. 9. Second—The question of the correctness of the ruling of the Court, excluding the defendant’s evidence offered to show that he had a title from the common source, older and better than that of the plaintiff, depends altogether upon whether the Court had jurisdiction over the person of Coons, the defendant in the foreclosure suit.

The judgment having been rendered by a Court of general jurisdiction, it will be presumed that Coons was made a party to the suit in some of the ways provided by law, unless the contrary appears affirmatively by the record. (Whitwell v. Barbier, 7 Cal. 54; Dorente v. Sullivan, 7 Cal. 279; Nagle v. Macy, 9 Cal. 426.) ¡¡Nothing is included in the record of a suit but the judgment roll. As the judgment in Daugney v.

Coons was by default, the judgment roll therein consisted properly of the summons, proof of service, complaint, with memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. (Prac.

Act, Sec. 203.) It appears that the service on Coons was by publication of the summons for .three months in the Daily California Chronicle newspaper, the first insertion being on the 23d of June, 1855, and the last on the 25th of September, 1855; and by the deposit of a copy of the summons and complaint in the Post Office at San Francisco, on the 15th of June, 1855, directed to Coons, at St. Louis, Missouri, postage paid.

The deposit in the Post Office was proved by the affidavit of one Wilder, the person by whom the deposit was made, and the publication in the Chronicle was proved by the affi-' davit of one of the “ publishers and proprietors ” of that paper.

These affidavits constitute the “ proof of service ” (Practice Act, Sec. 33), and as such they belonged to the judgment roll. (Practice Act, Sec. 203.) The order of publication and the affidavit on which the order was based were also in evidence, but as neither the one nor the other constituted any part of the proof of service they were both foreign to the record, by which, in a collateral attack upon the judgment, we can alone be advised concerning the jurisdiction of the Court to pronounce it.

The circumstance that papers not belonging to the judgment roll are found commingled with or attached to other papers that do belong to it, can create no embarrassment. The case is one of mixture, and not of fusion, and the papers not falling within the statute definition of “judgment roll ” must be treated as of no effect. (Schenectady and Saratoga Park Road Co. v. Thatcher, 6 How. 227; Cook v. Dickerson, 1 Duer, 686.) The affidavit of publication in Daugney v.

Coons, sets forth the summons as published, and on comparing the publication with the original, contained in the roll, certain discrepancies appear, and they are relied on in argument to show that the Court had no jurisdiction of the person of Coons. It is a sufficient answer to this objection to say that the differences noted are purely literal, and quite microscopic at that. In sense and meaning the original summons and the published version of it are identical, and that is enough.

There is, perhaps, no connection in which form has been regarded as substance to a greater degree than in the law of tax titles; still we held, in Bosworth v.

Danzien, 25 Cal. 296, that “ an assessment of land is not void by reason of a mistake in the description, unless it contain such a falsity in the designation or description of the land assessed as might mislead the owner and prevent him from ascertaining that his land had been assessed.” The objection that it does not appear by the affidavit of publication that the Daily California Chronicle was a newspaper is simply a mistake of fact on the part of counsel.

The further objection that, the affidavit was made by a “publisher and proprietor,” and not by the “ printer, foreman or principal clerk,” is fully met by Bunce v. Reed, 16 Barb. 347. It was held in that case that for the purposes of the question “ printers and publishers might be considered synonymous, the latter being within the spirit of the statute.” An affidavit which should fail to show that the, affiant had any relations to the paper, might demand, if unaided by other portions of the judgment roll, a different consideration. Steinbach v. Leese, 27 Cal. 295, was a case of that character.

It is objected to the affidavit of deposit in the Post Office that it does not state that the affiant was a white male citizen. The answer is that the twenty-eighth

section of the Practice Act makes sex, color, age and citizenship essential to the competency of a third person to serve process, relates to cases where the service is otherwise than by publication. (McMillan v. Reynolds, 11 Cal. 372.) The thirty-first

section of the Practice Act, providing for that exceptional mode of service does not trammel the method by requiring the publication to be made by one human being rather than another.; and it follows, so that the act be done, that it is of no moment by whom. The act of making a deposit of the summons and complaint in the Post Office falls under the same rule. So far as the act of publication is concerned, its performance is to be proved by the affidavit of one of these persons named in the thirty-third

section of the Practice Act; but the transaction at the Post Office may be proved by any one. The

section lays down no rule upon the subject. It calls simply for an affidavit. It is further.objected that the affidavit does not state that the deposit was made in a United States Post Office, nor that there was communication by mail between the place of deposit and the place to which the package was addressed. Both objections are submitted without argument, and they are overruled in like manner.

It may be said in conclusion that, so far from its appearing affirmatively on the face of the record that the Court had not jurisdiction over Coons, the judgment roll, so far as it throws or was intended to throw any light upon the question, supports the presumption by which the judgment is shielded. In so far as the order of publication and the affidavit antedating it are. concerned, the intendment in this collateral attack upon the judgment is conclusive that everything was rightly acted.

The question of the legal sufficiency of both affidavit and order might have been raised by motion made in the action, or an appeal supported by a statement. (Harper v. Minor, 27 Cal. 109.) Judgment reversed and new trial ordered.