Espinosa v. Phelan

19 P. 188, 77 Cal. 100, 1888 Cal. LEXIS 634

• Court: California Supreme Court
• Decided: September 22, 1888
• Docket: No. 12557
• Status: Published

Opinion

Foote, C.

This is an action to determine a contest as to which of the parties' has a better right to purchase certain school land from the state.

The court below dismissed the action upon the ground that it did not have jurisdiction to try it, being of opinion that there was no valid order of reference on file. The order of reference, among other things, contained this recital: —

“ On October 14, 1886, a duly verified protest against the issuance of a patent to said Thomas Phelan, or his assigns, of said land, and a demand that aid conflicting claims to purchase said land was filed in the office of the state surveyor-general by said Refugio Espinosa.

“ It is therefore ordered and directed that the contest as set forth between the above-named parties be, and the same is hereby, referred to the superior court in and for the county of Los Angeles, state of California, for adjudication.”

From this and the other portions of the order in question, it is evident to us that a contest had arisen in the office of the surveyor-general, and ex officio register of the state land-office, between Espinosa and Phelan, as to who had the better legal right to purchase the land therein mentioned from the state, and that the order of reference was made in consequence of a demand made by Espinosa.

It is true, there is evidently, by clerical error, an omission in the order to write after the word "demand” “be referred to the proper court of the state for trial,” but nevertheless it is plain that the order was not made upon his own motion by the surveyor-general, ex officio register, but was made upon the demand of Espinosa. The words “it is .therefore ordered” refer to the “demand,” previously recited as having been made by Espinosa, and must mean that the surveyor-general and ex oficio register made the order of reference .to the superior court of Los Angeles County, because of the demand of Espinosa that he should do so.

Nothing in the statute requires that such a demand should be made in writing.

Whether the contest was initiated by the protest and demand in the office of the register or surveyor-general, under section 3414 of the Political Code, did not affect the validity of the order which was made by the deputy who acted in that capacity, and signed and sealed the order for both register and surveyor-general. (Pol. Code, secs. 350, 497; Cunningham v. Crowley, 51 Cal. 132.)

- We are of opinion that the court had jurisdiction to try the action, and that it should not have been dismissed. We therefore ad vise that the judgment and order be reversed, and the cause remanded for further proceedings.

Belcher, C. C., and Hayne, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for further proceedings.