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is collateral to the principal obligation which rests on the corporation, and is to be resorted to only in case of the insolvency of the corporation, or where payment can not be enforced by ordinary process." But in this state such liability is a primary fund or resource to which creditors of a corporation may resort, regardless of the solvency of the corporation: Morrow v. Superior Court, 64 Cal. 383; Mitchell v. Beckman, 64 Cal. 117.
It is clear that a breach of the implied contract thus created between the parties here was made when the defendant refused to accept and pay for the crop of 1884; and the plaintiff, upon the breach being so made, having stepped in and received and paid for the crop pursuant to the original contract, as it was obliged to do, thereby acquired the right to recover, as damages, from the defendant, the difference between the price paid under the contract to Blackwood, and that realized from the sale of the fruit in open market at current rates.
As the solution of this question is decisive of this appeal, we do not deem it necessary to discuss the other points made by the appellant, but will add that we discover no error in the record.
CONTRACT, ASSIGNABILITY 03. — A contract by which the owner of a videyard is given the privilege of selling all the grapes he may grow for a period of ten years, from vines in a certain vineyard, may be assigned by the vino. yardist: La Rue v. Grozinjer, 84 Cal. 281, 18 Ain. St. Rep. 179, in which case are construed sections 1437 and 1459 of the Civil Code of California
PERKINS V. WAKEHAM.
(86 CALIFORNIA, 680.) JURISDIOTION – DECREE DETERMINING CONFLICTING CLAIMS OF TITLE.
DEOREE AGAINST NON-RESIDENT DEFENDANT, based upon service of procons by publication, in an action to determine conflicting claims to real property situated within this state, is valid. The state has power to provide for the determination of such claims, and to authorize the ser.
vice of process on non-resident defendants by the publication thereof. DECREES QUIETING Title, while not strictly in rem, partake of the nature
of judgmonts in rem, and may, therefore, be supported by the servico
of process on a non-resident defendant by publication. JURISDICTIOX. - SERVICE or SUMMONS ON NON-RESIDENT DEFENDANTS in
an action to determine conflicting claims of title to real estate is as effectively authorized by a general statute applicable to all classes of
notions us by a statute relating only to actions of the class in question. Wells, Guthrie, and Lee, for the appellant. Victor Montgomery and J. W. Towner, for the respondenta
PATERSON, J. The appeal from the order denying the motion for a new trial, so far as it affects the respondent town of Santa Ana, must be dismissed.
The notice of intention to move for a new trial was not served on said respondent. There was an attempt to serve the statement, but the attorney upon whom it was served bad no authority to accept service, which fact was known to appellant at the time of service.
The motion of respondent the town of Santa Ana to dismiss the appeal from the order denying a new trial is granted, and said appeal, in so far as it affects said respondent, is dismissed. A motion was made on various grounds, also, to dismiss the appeal from the judgment, but as the findings support the judgment, and no error appears on the face of the roll, we deem it best not to pass on the motion to dismiss, but to affirm the judgment.
The court found that in a former action brought by Wakeham against Perkins and others, to determine all adverse claims to the property described in the complaint herein, judgment was entered in favor of said Wakeham, defendant herein, adjudging him to be the owner of the property.
It is claimed by appellant that the decree in the former action to quiet title is in personam, and not in rem, and that as the service of summons was by publication, while he was absent from the state, and as he did not answer or appear, the judgment is void.
If it be true that a state has no power by statute to provide for the determination of adverse claims to real estate lying within its limits, as against non-resident claimants, who can be brought into court only by publication, - if the state in her sovereignty is impotent to protect the title of citizens to her soil against the asserted claims of non-residents who will not voluntarily submit their claims to her courts for adjudication, - great evil must result. Certainty and security in the titles of real estate, and convenient and effective procedure for the determination of individual rights in such property, are essential to the prosperity of the community. If those who cannot be reached by the process of the courts may asBert adverse claims to real estate, and hold unlawful clouds over the title of the owner, every homestead and lot in the state may have a cloud cast upon it for all time.
We do not think that a sovereign state is so limited in its power. The state is paramount in power over all things real
within its territorial boundaries, except so far as its authority is limited by the constitution and laws of the United States; and the courts of the state, acting within that limitation, have, and may, exercise all the jurisdiction over all persons and things which the constitution and laws of the state confer upon them. The manner of obtaining such jurisdiction, and the procedure for its exercise, are matters of state legislation.
The legislature of this state has provided that " an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim": Code Civ. Proc., sec. 738. It has also provided: “Where the person on whom the service is to be made resides out of the state, or has de parted from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, or is a foreign corporation having no managing or business ageut, cashier, or secretary within the state, and the fact appears by affidavit, to the satisfaction of the court, or a judge thereof, and it also appears, by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or judge may make an order that the service be made by the publication of the summons. The order must direct the publication to be made in a newspaper, to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; but publication against a defendant residing out of the state, or absent therefrom, must not be less than two months": Code Civ. Proc., secs. 412, 413.
Unless the method of giving notice above prescribed is unreasonable, or is in conflict with some provision of the constitution or principle of natural justice, it cannot be held invalid. In determining the question of its validity, the nature of the action and the effect of the judgment must be considered. While it is true, as a general proposition, that an action to quiet title is an action in equity which acts upon the person, it is also true that the state has power to regulate the tenure of immovable property within its limits, the conditions of its ownership, and the modes of establisbing the same, whether the owner be citizen or stranger: United States v. Fox, 94 U. S. 315. While a decree quieting title is not in rem, strictly speaking, it fixes and settles the title to real estate, and to that extent certainly partakes of the nature of a judgment in rem.
But it is not necessary, in support of a judgment in such an action, where service has been had by publication, to determine the question whether it is a judgment in personam or one
This precise point has recently been decided by the supreme court of the United States. Mr. Justice Brewer, speaking for the court, said: “The question is, not what a court of equity, by virtue of its general powers, and in the absence of a statute, might do, but it is, What jurisdiction has a state over titles to real estates within its limits? and what jurisdiction may it give, by statute, to its own courts to determine the validity and extent of the claims of non-residents to such real estate?”: Arndt v. Griggs, 134 U. S. 320. There the power of the state to quiet title as against non-residents, by constructive service, is upheld, and the cases upon which appellant herein chiefly relies are fully considered and elaborately reviewed.
In that case, it is true, the statute of the state of Nebraska, which was under consideration, expressly provided for service by publication in actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest, actual or contin. gent, therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, and such defendant is a non-resident of the state or foreign corpora. tion "; but the authority conferred by the legislature of this state, in section 412 of the Code of Civil Procedure, is as great as that given by the Nebraska statute. While our statute is general, and in terms applies to all actions, it is not invalid because it includes in its provisions proceedings purely in per sonam.
If the judgment in the action of Wakeham is valid and binding, and we hold that it is - other questions raised by appellant need not be noticed.
The judgment and order are affirmed.
ACTION TO QUIET TITLE - SERVICE BY PUBLICATION. — A decree to quiet title to realty and remove clouds from the same may be rendered upon service of summons by publication upon the defendant: Essiy v. Lower, 120 Ind. 239; Bancroft v. Conant, 64 N. H. 151: Dillon v. Heller, 39 Kan. 599; Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742, and note 762–770. Compare Adams v. Cowles, 95 Mo. 501; 6 Am. St. Rep. 74.
With respect to the jurisdiction of courts over property within the state, acquired by service of process by publication, see Young v. Upshur, 42 La Ann. 362; port, p. 000, and note.
HUNTLEY V. HOLT.
(59 CONNECTICUT, 102.)
to every material matter within the issues which was expressly litigated
judgment on the merits conclusive between the parties is, that the ques.
signee to recover the same debt from the same judgment debtor. PRACTICE – IONORANCE OF CAUSE OF ABATEMENT will never justify the
filing of a plea in abatement after the time limited has expired. W. B. Stoddard, and S. C. Loomis, for the appellant. J. W. Alling, for the appellee.
ANDREWS, C. J. The appeal in this case presents two questions; one in respect to a plea in abatement, the other in respect to the admission of evidence. The complaint was returnable, and was returned to the superior court in New Haven County on the first Tuesday of March, 1888, at which time the parties respectively appeared. On the third day of March, 1890, and after the case had been regularly assigned