Cunningham v. Shanklin

Morrison, C. J.: This case is brought before us on an agreed statement of facts, from which it appears that contests having arisen in the office of the Surveyor General, between the plaintiff and other parties, respecting their rights to purchase certain lands belonging to the State, the same were referred to the District Court of the Twentieth Judicial District for determination, under Sections 3414, 3415, and 3416 of the Political Code. In pursuance of the order of reference, the plaintiff commenced actions in said District Court for the purpose of having such conflicting claims determined, and such proceedings were had in them, that, on the first day of August, 1874, the Court entered its judgment in one of the cases, whereby it was “ ordered, adjudged, and decreed, that the said James F. Cunningham is entitled to purchase said land, and to have his application, described in his complaint for the purchase of said land, approved. * * * That his location thereof be approved,” and directing the Surveyor General of said State, “upon the filing in his office of a copy of said decree, duly certified, to approve the said application and location of said Cunningham, and to issue to him a certificate [124] thereof,” etc. On the fifteenth day of February, 1875, judgments were entered in the other cases to the same effect. On the fourteenth day of August, 1878, one J. S. Manley filed an application for the same land, and on the twenty-sixth day of August, 1881, he made a demand that the contest between Cunningham and himself be referred to the proper Court for trial. On the thirty-first day of August, 1881, the Surveyor General and ex officio Register of the State Land Office made an order referring said contest to the Superior Court of Santa Cruz county for trial. These are the substantial and material facts presented by the agreed statement, and the following are the questions which are submitted to us for decision: 1. "Whether the case of Cunningham v. Crowley, above mentioned, is a proceeding in rem or in the nature of a proceeding in rem, giving the said Cunningham a right to purchase said land absolutely ? 2. Are the State and the officers thereof estopped from selling the same land to an applicant who filed his claim pending the said action or subsequent thereto ? 3. Was the Surveyor General authorized by law to receive the application of said Manley et al., and did the reception and filing of said application create such a contest in the-office of the Surveyor General or Register of the State Land Office, as would authorize said officers to refer the parties to Court to litigate their respective claims, before Cunningham would be entitled to his patent under Section 1519 of the Political Code ? 4. Is the judgment in Cunningham v. Crowley an estoppel against proceedings to sell to Manley ? 5. Finally, is Cunningham entitled to his writ of mandate against said Shanklin to compel him to take the necessary steps to issue to him a patent, notwithstanding the Surveyor General has certified that a contest exists between Cunningham and Manley, and has referred the same to Court ? By Section 3416 of the Political Code it is provided that “ upon filing with the Surveyor General or Register, as the case may be, a copy of the judgment of the Court, that officer must approve the survey or location, or issue the certificate of purchase or other evidence of title in accordance with such judgment.” [125] Was the action a proceeding in rem ? In rem is a technical term used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions, which are said to be in personam. Proceedings in rem include not only those instituted to obtain decrees or judgments against property, as forfeited in the Admiralty or the English Exchequer, or as prize, but also suits against property to enforce a lien or privilege in the Admiralty Courts, and suits to obtain the sentence, judgment, or decree of other Courts upon the personal status or relations of the party, such as marriage, divorce, bastardy, settlement, or the like.” (1 Bouvier’s Law Diet. 693.) Decisions in such cases are “ binding and conclusive, not only upon the parties actually litigating in the cases, but upon all others. * * * Every one who can possibly be affected by the decision has a right to appear and assert his own rights, by becoming an actual party to the proceedings,” etc. (1 Greenl. Ev., § 525.) We are not prepared to say that the proceeding under the statute in question is a proceeding in rem, although it may bear some resemblance to such a proceeding. But are the officers of the State estopped thereby from selling the same land to an applicant who filed his claim pending the action brought to determine the contest, or subsequent thereto? This question must be answered in the affirmative, as it was by the Court sitting in bank in the case of Laugenour v. Shanklin, 57 Cal. 70. Mr. Justice Boss, delivering the opinion of the Court, says: “There would be no end to cases of this character if, after judgment had been entered'in an action to determine the right of contestants to purchase, new parties can come in to prevent the enforcement of such judgment. Section 387 of the Code of Civil Procedure does not authorize an intervention under such circumstances. It having been determined by the Court in the action of Wright v. Laugenour, 55 Cal. 280, that the application of the petitioner for the purchase of the land in dispute was good and valid, and that the application of Wright therefor was invalid, it becomes the duty of the respondent, by virtue of Section 3416 of the Political Code, to approve petitioner’s application.” The facts of that case are" similar to those presented in the [126] case now under consideration, and the principles announced therein are decisive of the present case. The Surveyor General was not, therefore, authorized to receive the application of Manley, and thereupon to direct a second reference for a second trial. It was his duty to obey the directions of the Court, contained in the judgment upon the first contest, and therefore the plaintiff is entitled to a writ of mandamus. Let the writ issue as prayed for. Sharpstein and Thornton, JJ., concurred.