Steinbach v. Leese

By the Court, Shafter, J. This appeal is from an order granting a writ of assistance. The action was brought to foreclose a mortgage executed to Salvador Vallejo by defendant Leese in 1850, which mortgage came to the plaintiff by assignment. The complaint was filed May 1, 1857, and a notice of Us pendens was filed on the 30th of the same month. At the time the action was brought, Jones, who was named as a defendant in the complaint, was the owner of a part of the mortgaged premises by title derived from Leese and Yale subsequent to the mortgage. A final decree was entered November 3, 1860, against all the defendants, and the plaintiff became the purchaser of the mortgaged [298] premises at the Sheriff’s sale, and is now the holder of the Sheriff’s deed. The appellants, Brooks, Tennant, Lazarus, and Johnson, claim under their co-appellánt Jones, by title derived from him since the filing of the notice of lis pendens. The only question is, whether Jones was a party to the foreclosure suit. On the 24th of September, 1857, an order was made directing the service of summons as to Jones and three other defendants, by publication in the California Chronicle, at least once a week for a period of three months. The, proof that the order was complied with was the following affidavit: “ State of California, • ) “ City and County of San Francisco. 5 “H. F. W. Hoffman, principal clerk in the offic'e of the California Chronicle, a daily newspaper published in said city and county, being duly sworn, deposes and says, that the notice of which the annexed printed notice is a copy, has been published in said paper at least once a week three months, commencing on the 26th day of September, 1857, and ending on the 26th day of December, 1857. H. F. W. Hoffman. “ Subscribed before me this 26th day of December, 1857. “D. B. Hempstead, Notary Public.” By subdivision third of the thirty-third section of the Practice Act, the fact that an order of publication has been complied with, is to be proved by “ the affidavit of the printer, or his foreman, or principal clerk;” and as we construe the provision, they are the only persons competent to testify on the subject. That the affiant is one of the three, is itself a substantive fact, and must be proved as such before the Court in which the action is pending can proceed to render j udgment against the parties to whom notice is intended to be given. In the affidavit now in question, the affiant swears to nothing except to the matters set forth after the word “ deposes.” He names himself as principal clerk, but he does not swear that that was his position in fact. {Ex parte Bank of Monroe, 7 [299] Hill, 178 ; Cunningham v. Goelet, 4 Denio, 71; Staples v. Fair-child, 3 N. Y. 44; Payne v. Young, 8 N. Y. 158.) The result is, that as the record in Steinback v. Leese et al,, is made up, judgment was rendered against Jones without any proof that the order of publication had been complied with. There are other grounds upon which it is insisted that the proceedings under the order were fatally defective, but it is not necessary for us to consider them. The respondent, however, contends that Jones appeared to the action by giving a notice of appeal from the decree through an attorney, who, it appears, properly represented some of the defendants, but who, without authority and inadvertently, inserted Jones’ name in the notice as one of the parties for whom he acted. It is provided by the five hundred and twenty-third section of the Practice Act, that “ a defendant shall be deemed to appear in an action when he answers, demurs or gives the plaintiff a written notice of appearance for him.” The words “ answers ” and “ demurs ” are obviously words of enumeration, and we cannot, on received principles, interpolate into the text, notices of motion for new trials, notices of appeal, nor any other paper served incidentally in the conduct of judicial proceedings, the direct and principal purpose of which is, not to give notice of appearance, but to give notice of a step taken or about to be taken in the cause. We have no doubt that the written notice of appearance provided for in the section, is a document to be drawn up especially for that purpose, and that service of it is to antedate, or to be contemporaneous with, the service of all other notices and papers. Steinbach was himself the purchaser at the Sheriff’s sale, and must be presumed to have bought with notice of all defects in the proceedings relating to the publication. {McMillan and Wife v. Reynolds, 11 Cal. 378.) The order appealed from is reversed. .