Martin v. Parsons

Citations

• 50 Cal. 498

Syllabus

<p>Court Commissionebs.—Under the act of April 4, 1864, which provides that in tax suits, upon default of the defendant, the Court Commissioner shall draft a decree, etc., the duties of the Court Commissioner do not commence until the summons is duly served, and if a case is referred to him, his first duty is to ascertain whether the summons has been served.</p> <p>Sekvice of Summons bx Publication.—In a suit to enforce a lien for taxes, if the complaint is not verified, service of summons cannot be made by publication and posting, without making an affidavit and procuring an order of publication, as in other cases.</p> <p>When Coubt Cohmissioneb is Guilty of Negligence.—If a Court Commissioner whose duty it is, in-tax cases, in case of default, to draft a decree, drafts one, inserting therein that summons has been served, without any previous effort to ascertain that fact, he is guilty of gross negligence, and the negligence is none the less if he acts in good faith and without any fraudulent intent.</p> <p>Relief bt Couet of Equity against Feaud.—If a Court Commissioner whose duty it is, in cases of default in tax suits, to draft a decree enforcing the lien of the tax, by negligence inserts in the decree a clause that the summons has been served when it has not been served, and afterwards becomes a purchaser of the property at the tax sale, a court of equity will not permit him to profit by his wrongful act, and his deed will be set .aside.</p>