American Land Co. v. Zeiss

Citations

• 191 F. 125
• 111 C.C.A. 605
• 1911 U.S. App. LEXIS 4916

Syllabus

<p>1. Judgment (§ 812*) — Destruction of Records — Suit in Rem — California Statute.</p> <p>Under Act June 16, 1906 (St. Cal. [Ex. Sess.] 1906, p. 78), known as the “MeEnerney Act,” which provides that “whenever the public records in the office of a county recorder have been, or shall hereafter be, lost or destroyed, in whole or in any material part, by flood, fire or earthquake, any person who claims an estate of inheritance or for life in, and who is * * * in the actual and peaceable possession of any real property in such county, may bring and maintain an action in rein against all tbe world in the superior court for the county in which such real property is situate to establish his title to such property and to determine all adverse claims thereto,” a judgment in favor of the plaintiff in such an action is conclusive between- the parties, and when collaterally attacked, of the sufficiency of plaintiff’s title and possession to sustain the action and of the affidavit required to be filed with the complaint setting out such title and possession, which affidavit is not jurisdictional.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1435-1442; Dee. Dig. § 812.*]</p> <p>2. Judgment (153*) — -Destruction of Records — Suit in Rem Under California Statute.</p> <p>Code Civ. Proc. Cal. § 473, providing that “when from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action,” is applicable to actions brought under the McEnerney act of June 16, 1906 (St. Cal. [Ex. Sess.] 1906, p. 78), passed to meet the situation caused by the destruction of the records of titles in the San Erancisco earthquake, and authorizing suits in rem to establish titles and determine adverse claims, and operates as a limitation of the tim