Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 30 Cal. 611 at 619.
Original Opinion of October 1866, Reported at: 30 Cal. 611.
JUDGES: Currey, C. J., on petition for rehearing.
OPINION
CURREY, Judge
By the Court, Currey, C. J., on petition for rehearing:
A rehearing is sought in this case on the part of the defendant, on the ground that in the determination of it heretofore this Court, as well as the Court below, overstepped the bounds of legitimate authority, and held the judgment in form in favor of Seaman against Robert A. Curl, which the defendant offered in evidence on the trial, null and void, on the ground that the Court which rendered it had not jurisdiction over the person of Robert A. Curl; and, to maintain the position, counsel for the defendant have assumed that the affidavit on which the order of publication of summons was made tended to establish the facts essential to the existence of the power of the Court to make the order. Did the evidence thus furnished tend to prove all the facts necessary to invest the Court with power to make the order, is the only question to be considered. The facts which the plaintiff in the case of Seaman against Curl undertook by affidavit to establish were: first, that the defendant Curl could not, with due diligence, be found within the State; and second, that a cause of action existed against him.
It must be admitted that the affidavit in such a case must not only show due diligence to find the defendant, but it must appear therefrom that the diligence used has not been rewarded with a discovery of the sought for defendant. The object of due diligence in searching for a defendant is supposed to be to find him; and it is necessary to show by the affidavit that he cannot, after the exercise of due diligence, be found within the State. The statute requires this. Now, let the affidavit of Seaman be tested by these statutory conditions precedent, and see whether it comes up to the measure required. He deposed that for the period of three or four years immediately before the making of his affidavit, he had made frequent inquiries for Robert A. Curl, of all persons whom he thought likely to know him in San Francisco, or elsewhere, to ascertain where he might be found, but had been unable to find any one who had seen him or heard positively from him for the past eight years. By this it appears that Seaman had taken certain steps in the line of due diligence to find Curl, but it does not appear that his diligence had not been rewarded by information respecting where the person for whom he was in search was to be found. On the contrary, it appears, by implication at least, that he had succeeded in the sought-for discovery. This conclusion results from the closing part of the affidavit on the subject, to wit: " That he had been unable to find any one who had seen or heard positively from Curl for the past eight years." The qualifying word " positively" is of pernicious import for the position of the defendant herein, as it stands related to the subject. It is fairly to be inferred from the language employed, that though he may not have been able to find any one who had seen Curl, or " heard positively from him," yet that he had been informed by those of whom he inquired, or some of them, of where Curl was, or he may have ascertained by his inquiries or otherwise circumstantially, and to a moral certainty, where the defendant for whom he had searched was to be found. Further, the affidavit does not show that the plaintiff in that suit had not found some one who had heard, and recently heard, of and respecting Curl and the place of his residence; nor does it show that Seaman himself did not know where he was at that date. So that though the affidavit may at least tend to show due diligence to find the defendant, it does not appear therefrom that when it was made he was not informed of where such defendant was. In short, it does not show that after the exercise of due diligence the defendant could not be found within the State. This, upon the very conditions of the statute, it was necessary to show by affidavit, before the Court could acquire jurisdiction to make the order of publication of the summons.
In conclusion, we may refer those interested in the question to the opinion of the Court in the case of Forbes v. Hyde, 31 Cal. 342, wherein the jurisdictional questions arising upon the thirtieth section of the Practice Act are fully and elaborately considered.
The petition for rehearing is denied.