Scorpion Silver Mining Co. v. Marsano

10 Nev. 370

• Court: Nevada Supreme Court
• Decided: October 15, 1875
• Docket: No. 718
• Status: Published

Opinion

By the Court,

Beatty, J.:

The complaint in this action is verified, and contains the following allegations: That the plaintiff is a California corporation; that it is the owner and in the actual and exclusive possession of certain mining ground situated in Storey County; that defendant claims an estate in the premises adverse to the plaintiff; that his claim is based solely upon the proceedings in a certain action in a justice’s court of Yirginia City, brought by the defendant Marsano against the corporation, plaintiff in this action; that these proceedings (which are recited in the complaint) cast a cloud upon plaintiff’s title; that the defendant has no estate in the premises, and his claim thereto is inequitable for the reason (among others) that the judgment under -which he claims, and consequently the execution, levy, sale and constable’s deed made in pursuance of it, are void for want of jurisdiction of the person of the defendant in the'action.

The complaint concludes with the following prayer: “Wherefore, plaintiff prays that said defendant herein may be required to answer this complaint and set forth and show to this Court, upon what and how he claims an estate in said mining claim and premises, and thereupon that the said defendant be adjudged to have no estate in the same and that his claim thereof is invalid, and that the said deed and proceedings aforesaid are a cloud upon plaintiff’s title to said premises, and that the same be removed,” and for general relief.

The defendant, in his answer, denies that plaintiff is a corporation, but admits its possession of the premises, and that he claims an estate therein adverse to the plaintiff, based upon the proceedings had in the action in the justice’s court. These proceedings he sets forth at large, showing the attempts made by the justice of the peace to obtain jurisdiction of the person of the defendant, the judgment by default, execution, levy, sale and constable’s deed. He further alleges that he remained in peaceable possession of the premises, under his deed, from April to December, 1874, expending labor and money in the development and improvement of the property, and that he was then forcibly ejected by the plaintiff. He prays to be adjudged the owner of the premises, for costs and general relief.

Upon these pleadings the parties went to trial. The plaintiff proved its incorporation, read the complaint and answer, and rested its case. The defendant moved for a nonsuit, which motion was overruled. The defendant then put in evidence his deed, and the papers and proceedings in the case of Marsano v. The Scorpion S. M. Co., in pursuance of which it was executed. In addition to these papers he offered certain oral testimony for the purpose of showing service of the summons in that case, and testimony to prove that he went into possession of the premises in controversy under his constable’s deed, worked upon them, and was so engaged when he was forcibly ejected by plaintiff’s servants.

Upon this testimony the case was submitted to the court. Findings were filed in favor of plaintiff, and judgment entered accordingly. Tbe defendant moved for other and additional findings and for a new trial, which motions were overruled; and he takes this appeal from the judgment and the order overruling his motion for a new trial.

In support of his appeal the defendant argues, that the plaintiff ought not to be allowed to maintain this action because it obtained the possession of the premises upon which it relies, by illegal means — that is, vi et amis. But we think this objection cannot be maintained, for if this is an action to remove a cloud upon the title of the plaintiff, possession of the premises is not essential to enable the plaintiff to recover, and if it is .an action brought in pursuance of the provisions of section 256 of the practice act, the mode of acquiring possession is of no consequence. The statute gives the right of action to any person in possession, irrespective of the mode by which possession has been acquired. We are not authorized to create exceptions, or impose limitations which the statute does not recognize, and can perceive no good end to be subserved by doing so, even if we had the power. The following cases are cited in support of this view: 32 Cal. 109; 45 Id. 519; 26 Id. 314. As to other suggestions made in this connection, on the argument, we believe it is not seriously contended that an estoppel has been either pleaded or proved, and certainly none has been.

The next point relied upon by the appellant is, that the court erred in overruling his motion for a nonsuit, and he relies upon the authority of Blasdel v. Williams (9 Nev. 161) in support of his position. In the written argument filed by counsel for respondent they take no notice of this point or of the case referred to in support of it. On the oral ar•gument, if we remember rightly, they took the position that this case was essentially unlike that of Blasdel v. Williams, and that the points there decided have no application here. But after mature consideration we are unable to discriminate the two cases, and if the decision of Blasdel v. Williams is law, we do not perceive how this judgment can be sustained. The leading principle laid down in that case, and from wbicb the point decided is a mere deduction, is expressed in the following language: “A defendant in an ordinary suit is not to be brought into court except upon a cause of action against him; that cause, under the statute here in question” (section 256 of the civil practice act), “is the assertion of a claim to real property prejudicial to the plaintiff. Certainly it devolves upon the plaintiff to show such assertion and its prejudicial effect, tuhich can alone follow from a claim in semblance valid, in reality void.” That is to say, under the statute, as before it and independent of it, in a suit to remove a cloud upon title, it is essential that the plaintiff shall plead and prove a claim by defendant which has the semblance of validity, prima facie, but is in reality void by reason of extrinsic facts, which must likewise be pleaded and proved by the plaintiff, even though this should involve the necessity of proving a negative. Now, if this is the law, we say again that we do not perceive how this judgment can be sustained; for if the complaint shows that the claim of defendant is invalid at all, it shows that it is void absolutely and upon its face. And if the answer shows anything in addition to this, it shows that the claim of defendant, though apparently invalid, is in reality good; so that when the plaintiff rested on the pleadings, it had pleaded and proved itself out of court, and no testimony was offered by the defendant on his part which had the slightest tendency to mend the plaintiff’s case. It results, therefore, that we are under the necessity of deciding whether we will adhere to the rule of Blasdel v. Williams or abandon it, and we must express our regret that the views entertained of this case by counsel for respondent force us to make the decision without the benefit of a reargument of the important questions involved. We regret this the more because the investigation which we have been able to make for ourselves has forced us to the conclusion that the decision referred to is not only unsustained by satisfactory reasons, but is opposed to the overwhelming weight of authority, and is not law. It is our opinion that, under a proper construction of this statute, it is not necessary for the plaintiff to set out specifically tlie character of the adverse claim, and that the burden is upon the defendant, if he admits plaintiff’s possession, or does not disclaim, to plead and prove a good title in himself. This conclusion disposes of a variety of points made by appellant as to the insufficiency of the pleadings and proofs on the part of the plaintiff, and brings us to the principal and only remaining' question in the case.

Did the defendant plead and prove a good title to the premises?

His title is the constable’s deed, and its validity depends upon the validity of the judgment of the justice of the peace in the action of Marsano against the Scorpion S. M. Co. That judgment is void if the justice of the peace had no jurisdiction of the person of the defendant, and it must be found that he had no such jurisdiction unless it is affirmatively shown that there was an actual or constructive service of the summons. (See Mallett v. Uncle Sam, 1 Nev. 198.) It is not claimed that there was any actual service, and the defendant, relying solely upon a constructive service, was bound to prove a strict compliance ■with some one of the modes prescribed by the statute for obtaining constructive service. Did he do so? In deciding this question, we concede for the sake of the argument (but without determining the point) that where the docket and papers on file in a case do not show the facts necessary to confer jurisdiction, they may be aided by proof aliunde; for taking all the testimony offered by defendant, and giving it the most ample effect, it does not prove any substantial, and much less a liberal compliance with the statute in the attempted service of the summons. The original summons in the action was issued July 22, 1873, and made returnable July 31, at 10 o’clock A. M. The only evidence of service of this summons offered or relied upon by the defendant was, 1st. The constable’s return, together witffi an attempt to prove that the person named in the return was the managing agent of the corporation; and 2d. An entry in the justice’s docket. The constable’s return, which was indorsed on the original summons, reads as follows:

“I hereby certify that I have served the within summons by delivering a true copy thereof to Thomas Brooks, business manager of Scorpion Company, in Virginia City, at the county of Storey, this 23d day of July, a. d. 1873.

“ J. D. Baldwin, Constable.”

The only testimony offered by the defendant as to the agency of Brooks was the following certificate:

“ Virginia. City, July 19, 1873.

“This is to certify that Mr. Marsano has worked thirty-eight (38) days for the Scorpion M. Co.,ytt $4.00 per day— $152.00.

“Bobert Apple, Superintendent,

“By T. Beooks.”

The statute makes the delivery of a copy of the summons to the “managing agent” of a foreign corporation service upon the corporation, but it does not mention “business manager ” of a corporation in that connection. It is contended, however, that “business manager” and “managing agent ” mean the same thing, and to name the one is to name the other, and consequently that the return of the officer by" itself shows a service by delivery of copy of summons to the “managing agent” of the defendant. If this is not admitted, it is further contended that the certificate signed by Brooks for Apple shows that he was in fact the managing agent of the corporation.

But we cannot assent to either proposition. The certificate above quoted, so far from tending to prove that Brooks was managing agent of the Scorpion S. M. Co., has a directly opposite tendency. It proves that Apple was such agent and that Brooks was his subordinate, having authority merely to sign his name. And if we disregard the certificate altogether, the constable’s return — considered as unimpaired, as it certainly is unaided, by the other testimony —does not show a service by delivery to the managing agent. Courts must know, and constables must be presumed to know, what the legislature means by the term managing agent, but we cannot know what a constable means by a designation unknown to the law; and if we are to indulge in any presumptions on the subject, we ought to presume that the officer did not write “business manager” by mistake, while intending-to write managing agent, but that he did so advisedly and ex industria, because he knew that Brooks was not the person meant by the statute. This disposes of the constable’s return. The entry in the justice’s docket relied on to prove á service reads as follows: “Summons served on Thos. Brooks, business manager, etc., of defendant at the city of Virginia, July 23, 1873,” etc. This entry proves nothing. The docket of the justice is only primary evidence of those facts which it is required to contain, and it is not required to contain any finding that summons has been served; it is only required to contain' the date of the summons, and the time of its return. (See Pr. Act, Sec. 562, and 15 Cal. 300.)

There was, then, no evidence of service of the original summons, and in point of fact the justice of the peace must have so decided, for it appears that on the return day of the summons, the plaintiff made an affidavit for service by publication, and the justice made his order accordingly and issued an alias summons commanding the defendant to appear and answer on the 8th of September, at ten o’clock A. M. The affidavit upon which this order was based sets forth, inter alia, “That said defendant has no president, cashier, secretary, managing agent, or other head within this State, defendant being an incorporation, incorporated under the laws of the State of California, having its principal place of business in the city of San Francisco.” The order thereupon made, directs publication in the “Territorial Enterprise” for the proper period, “and that a copy of the summons and complaint in said action be deposited in the United States post-office at Virginia City aforesaid, directed to said defendant and W. H. Martin, secretary thereof, át San Francisco,-California, Lock Bos 1550, office No. 534 California street, postage prepaid.”

In pursuance of this order, a copy of tbe summons was published in the “Enterprise” for the requisite period, but by mistake the time for appearance was printed twelve o’clock, September 8th, instead of ten o’clock of that day. This publication was properly proved by affidavit made and filed on the 8th of September; and, for the purposes of this decision, it will be conceded that the mistake of printing twelve o’clock instead of ten o’clock, and the subsequent entry of judgment by default at eleven o’clock, belong to that class of irregularities in the service of process and conduct of proceedings for which the judgment of an inferior tribunal cannot be collaterally attacked, and consequently that this judgment and the proceedings thereunder would be sustained, if it were not liable to more serious objections.

But it was necessary not only to publish a copy of the summons, but to deposit another copy in the post-office directed to the defendant at San Francisco; and the statute prescribes that such deposit shall be proved by affidavit. Now, there never was any affidavit filed in the justice’s court showing this fact. But on the trial of this action in the court below, defendant was allowed to prove by the justice of the peace, without objection, that he, the justice, himself deposited the papers in the post-office on the 1st day of August, of which fact he made a memorandum in his docket. The appellant insists that the failure of the respondent to object to this proof when it was offered, concludes it upon this point. But he misapprehends the position of respondent, which is, that it was not sufficient for him to show an actual deposit in the post-office, but he was bound to show that the justice had competent proof of the fact before him when he entered the default of the Scorpion Company. In other words, that the proceedings of the justice must show upon their face that he had jurisdiction, at least so far as the statute prescribes that the proof shall be made in the form of affidavit, or by other documentary means.

Waiving this point, however, and conceding, as we have said we Avould, for tbe purposes of this case, that it is uot essential that the proceedings should show on their face every fact necessary to confer jurisdiction, or even those facts for which the statute prescribes documentary proof; and, assuming that a justice of the peace, when he makes the deposit of the copy of summons in the post-office himself, may dispense with an affidavit to the fact, and that it may be established at any time when his judgment is attacked by proof aliunde, the question remains, Did the testimony show a compliance with the law ? We think not.

The only testimony upon this point which we are able to discover in the record is that of the justice of the peace, to the effect that he deposited a true copy of the complaint and summons in the post-office, addressed as stated in his docket. The entry in his docket is as follows: “Copy of summons and account mailed August 1, 1873, to Hobert Apple or W. H. Martin, San Francisco, Cal.” Clearly this was not a compliance with the law, which required the summons to be directed to the defendant. The defendant was the Scorpion Silver Mining Company, and when the justice of the peace made the order of publication, and deposited a copy of the summons in the post-office, there was no evidence before him that either Apple or Martin was connected with that company in any manner or in any capacity whatever. It is true that on the trial of this case, in the court below, testimony was admitted going to show that in July, 1873, Apple was superintendent of the Scorpion Company, but there was not the slightest evidence that he lived or was in San Francisco at that time, and no presumption consequently that he received the summons. Testimony was also admitted showing that Martin was at the time of the trial (1875) secretary of the company, and that he resided in San Francisco in 1873, but there was nothing to show that he was secretary of the company in 1873, and nothing consequently upon which to build an argument that a direction of the summons to the secretary of the company is the same as a direction to the company itself. The letter from Martin to Marsano, dated in 1873, does not tend in the remotest degree to prove that he was then secretary of the Scorpion Company. Martin does allude in the letter to “our company,” and appends to his signature the word secretary, but the name of the Scorpion Company does not appear in the letter from beginning to end. On the contrary, the heading of the letter (which is as follows:

W. H. Mautxn, Gen. Agent,) CALIFORNIA IMMIGRANT UNION, Look Box 1550, t San Francisco, Cal.) Office 53i California Street,)

goes rather to prove that “our company” was the California Immigrant Union. And if the summons had been directed as prescribed in the order of the justice of the peace, we could only presume from this proof that it would have been received at the office of the California Immigrant Union, or deposited in the lock box of W. H. Martin, general agent.

Upon the whole, we conclude, as above stated, that in the case upon which the defendant relies there was not only not a strict, but not even a substantial compliance with the provisions of the statute authorizing constructive service of summons; and, consequently, that all the proceedings were void. "We have not thought it necessary to refer to the authorities which sustain the various points decided, because they are very numerous and almost unopposed. And we have omitted to pass upon many of the objections made by the respondent to the validity of the judgment in the case of Marsano v. Scorpion Company, because our conclusion upon the points discussed renders it unnecessary.

The judgment and order appealed from are affirmed.