People v. Fox ( 1870 )

Temple, J.,

delivered the opinion of the Court:

Action to collect delinquent taxes in the County of Santa Clara. Judgment was entered for the plaintiff by default, and defendant appeals upon the judgment roll. It is claimed by appellant that there rvas no service of summons cither upon the personal defendant, Mrs. Fox, or upon the real estate.

The return upon the summons in the judgment roll shows no service upon Mrs. Fox; and as there is no other proof of service upon her in the record, and she did not appear and Avaive service, this is conclusive. As to the land, the return states: “I personally served the annexed summons on the 30th day of January, A. D. 1868, on the real estate and improvements described in said annexed summons, by posting a copy thereof in a public place on each parcel of said premises personally, at Santa Clara County, State of California, and also by delivering a true copy thereof to J. W. Crow, who I found in possession and occupying the same. ”

This return shows a literal compliance with Section 41 of the Act to provide revenue for the support of the Government of this State, passed May 17, 1861, under the provisions of which this suit is brought. That Act authorized a suit against the owner, and also against the real estate; and to effect service upon the real estate does not require summons to be posted upon the Court-house door. That provision is expressly confined to service upon the personal defendant. Section 44 provides for a several judgment against the real estate and improvements when judgment cannot bo had against the personal defendant, and when the real owner is not sued at all. This statute authorized the judgment rendered in this case against the real estate and the improvements.

The Act in relation to suits brought for the collection, of delinquent taxes, passed May 12, 1862, expressly provides that the summons mentioned in Section 2 shall be in addition to the process theretofore provided by law. It therefore did not supersede the statute under which service was made in this case.

The fact that the real estate is described in the assessment and in the complaint as the “possession” of Mrs. Fox, is not an allegation that Mrs. Fox was in the actual possession, in the sense of Section 41 of the Act of May 17, 1861. The person or persons there mentioned are undoubtedly those actually occupying the land at the time of service. The return of the Sheriff, where no appearance is made, is prima facie evidence of the character of the person served; that is, that he was the person in possession within the meaning of that Act.

The personal judgment is reversed, but the judgment against the land and improvements is affirmed.