I dissent, and concur in the opinion of Commissioner Vanclief, prepared in Department, a copy of which is hereto attached; and I desire to say further, that, in my opinion, there is no sufficient evidence to support the latter part of the following finding of the court: “And the said John Steere was not then the owner of the said property, nor any part thereof, and had no right, title, or interest of any sort therein, all of which he well knew.” In Steere’s complaint in the original action, he first averred ownership and possession of the land, and afterwards also averred adverse possession in himself and grantors for five years; and it fully appears that he relied upon paper title founded on a certain tax deed, as well as upon adverse possession, —if *351 indeed he introduced any evidence at all about adverse possession, which does not appear. In the present action, Dunlap avers that the only claim which Steere had was a certain tax deed, which he sets out in full in his. complaint, together with the certificate of purchase which preceded it, in order to show that it did not, in law, convey title; the contention being that the deed, although good on its face, did not accomplish its purpose, because it did not follow the recitals of the certificate, and the recitals of the certificate showed an irregularity in the assessment. Assuming this to be the law, the attack upon Steere’s deed is, at least, extremely technical; and it does not support the finding of fraudulent personal intent against him, viz., that “ he well knew ” that “ he had no right, title, or interest of any sort ” in the property described in his deed. The only other evidence tending to support the said finding relates to Steere’s possession; and assuming that it shows a want of adverse possession, under the views above expressed, there was no warrant for the general finding that he well knew that he had no right or interest of any sort. There are other reasons why, in my opinion, the former judgment should not be disturbed, but I consider further discussion unnecessary.

The following is the opinion of Vanclief, 0., in Department: — <

“Action to quiet plaintiff’s title to two lots in the town of Santa Monica, in the county of Los Angeles, and for this purpose to annul a former judgment of the same court between the same parties as to the same lots, and to enjoin its execution. Judgment passed for the plaintiff, and the defendant appeals from the judgment, and from an order denying his motion for a new trial. The judgment was rendered September 24, 1888, and the appeal from it was taken July 18, 1890, and should therefore be dismissed; but the appeal from the order was taken within sixty days from the time the order was made.

*352 “ The principal question, and the only one that need be considered, is, Was the former judgment conclusive of the rights of the parties to the land in question? This question arises on the appeal from the order, by defendant’s exception to the sufficiency of the evidence. The former action was by the present defendant, Steere, against the plaintiff here, to quiet the alleged title of Steere to the lots in question; and the judgment therein was rendered against the defendant (plaintiff here) by default. The service of summons in that action having been made by publication, it is contended that the affidavit upon which the order of publication was made is defective and untrue in material particulars. The following is a copy of that affidavit: —

“ ‘ John Steere, being duly sworn, says that he is the plaintiff in the above-entitled action; that the complaint in said action was filed with the clerk of said court on the 25th day of June, 1884, and summons thereupon issued; that said action is brought to obtain a decree of said court quieting the plaintiff’s title to that certain tract or parcel of land lying and being situate in the county of Los Angeles, state of California, and particularly described as lots X and W, in block 193, in the town of Santa Monica, as designated on the map of said town; that in said decree it be declared and adjudged that plaintiff is the owner of said premises, and that the defendants, or either of them, have no estate or interest whatever in or to said land and premises; and affiant further says that said plaintiff is the owner in fee of said premises, and said plaintiff and his grantors have been, for more than five years continuously, in the open, notorious, and adverse possession of said premises, claiming the same adversely to all the world; that the defendants claim some interest in said premises adverse to plaintiff, but the said claims of defendants are without any right whatever; and that the said defendants, or either of them, have no right, title, or interest in said land or premises, or any part thereof. Deference is had to the verified complaint of plaintiff on file herein, in *353 which the cause of action is fully set forth; that said defendant R. T. Dunlap cannot, after due diligence, be found within this state; that the said R. T. Dunlap has departed from this state, and cannot, after due diligence, be found within- this state; and this affiant, in support thereof, states the following facts and circumstances: That the summons which was issued in said action was given to the sheriff of Los Angeles County, and said sheriff made diligent search for said defendant R. T. Dunlap, but could not find him, and said sheriff informed affiant that he did not know where said defendant Dunlap was or where he could be found; that affiant has searched for said defendant R. T. Dunlap, and has inquired of a great many of the citizens and residents of Los Angeles County—among them, M. B. Boyce, William Flores-, and John Milner — as to the whereabouts of said defendant R. T. Dunlap, and as to his residence; that each of said persons so inquired of informed affiant that they did-not know where said defendant Dunlap was, where he resided, or where he could be found; that said M. B- Boyceclaims to be the agent of said R. T. Dunlap, but even lie-informed this affiant that he did not know where said' Dunlap was, or where he could be found; that affiant, does not know where said R. T. Dunlap resides, where-he is, or where he can be found; that affiant has made diligent inquiry to find said defendant, but cannot, after due diligence, find him within this state; that this affiant therefore says that personal service of said- summons cannot be made on said defendant R. T. Dunlap, and prays for an order that service of the same-may be made by publication. John Steere.’

“ The order of publication was in the usual form, requiring the summons to be published twu months in a proper newspaper, and it was published as required by the order. More than one year after the rendition of the former judgment, the defendant (plaintiff in this action) moved the court in which it was rendered'to set it aside, and for leave to answer, upon his affidavit, stating substantially the same facts alleged in his complaint herein. *354 This motion was denied, and no exception was taken to the order denying the same, and no appeal has been taken therefrom. As one of the express objects of this action is to set aside the former judgment, and to enjoin its execution, that judgment is fully set out in the complaint, and the judgment roll in that action was introduced as evidence in chief by the plaintiff. The defendant also pleaded the former judgment as a bar to this action.

“ 1. It appears that the former action was commenced-by H. K. S. O’Melveny, as attorney for plaintiff, and that his name was indorsed on the summons as attorney for plaintiff; that before the order of publication was made, an order substituting Messrs. Wells, Van Dyke & Lee as attorneys for plaintiff was made; but that the summons was published as originally issued, with the name of O’Melveny indorsed thereon as attorney for plaintiff. It is contended by respondent that the name of Wells, Van Dyke & Lee should have been indorsed on the summons as published, and that the omission so to indorse them is a fatal defect in the publication. The provision of the code requiring the name of plaintiff’s attorney to be indorsed on the summons relates to the summons as issued by the clerk, and was complied with in this case. As there is no requirement that the names of attorneys afterwards substituted for or added to the original attorney for plaintiff shall be indorsed on the summons, I think the summons was properly published in the form in which it was issued.

“2. No other defect in the form or substance of the affidavit is pointed out by counsel, and none is perceived; but it is alleged that the statements therein, that Dunlap had departed from this state, and that, after due diligence, he could not be found within this state, are not true; and the court so found. The only evidence to sustain this finding is the testimony of the plaintiff, Dunlap, to the effect that, although he departed from this state in 1879, he returned to Inyo County, in this state, in the spring of 1881, where he openly and publicly re *355 sided and worked as a miner and farmer from that time until 1887; that he never, during that time, saw the newspaper in which the summons was publisned, nor had any actual notice of the publication of summons, or of the pendency of the former suit; that he left Mr. Boyce in charge of the lots when he departed from the state, but did not inform Boyce that he intended to leave, or where he was going; and that he never communicated with Boyce or any other person in Los Angeles County during his absence, until 1887. This testimony has no tendency to prove that the affidavit was not made in good faith. The affidavit is sufficient to show that, ‘ after due diligence,’ Dunlap could not be found ‘within the state.’ This, with the other facts therein stated, justified the order of publication. (Code Civ. Proc., sec. 412; Forbes v. Hyde, 31 Cal. 348 ; Ligare v. California Southern R. R. Co., 76 Cal. 610 .) The publication of the summons according to the order was service of it upon the defendant, having the same effect as if served by either of the other modes prescribed by the Code (Code Civ. Proc., secs. 413, 416), except that in case of service by publication alone, the defendant, on a proper showing, maybe allowed to answer to the merits of the action at any time within one year after the rendition of the judgment. (Code Civ. Proc., sec. 473.) After the expiration of one year, the judgment by default, upon service of summons by publication, is just as conclusive as if it had been rendered upon personal service, and will not be opened or set aside by a court of equity, except on the ground of fraud, accident, mistake, or surprise, by which, without any fault or negligence on his part, the defendant was prevented from making a meritorious defense. ( United States v. Throckmorton, 98 U. S. 68 ; Zellerbach v. Allenberg, 67 Cal. 298 ; Amador C. & M. Co. v. Mitchell, 59 Cal. 179 ; Mastick v. Thorp, 29 Cal. 448 ; Boston v. Haynes, 33 Cal. 32 ; Phelps v. Peabody, 7 Cal. 52 .) Upon a sufficient affidavit, the court found and determined that the defendant in the former action could not, ‘after due diligence, be found within the state,’ and so recited in the *356 order of publication. This judicial determination of the fact is conclusive as against the mere testimony of the plaintiff that he was in Inyo County, in this state, at the time the former action was commenced, and when the order of publication was made, and that, in his opinion, personal service might have been made upon him there by the exercise of due diligence. There is no pretense that the plaintiff in the former action knew or had any reason to believe that the defendant was in Inyo County. Nor is there any evidence tending to prove that the acts of diligence stated in the affidavit were not performed, or to show fraud or bad faith on the part of the plaintiff in that action in procuring the order of publication. Nor is there any averment or evidence of any mistake, accident, or surprise, in the legal sense of those terms, by which the plaintiff herein, without fault or negligence on his part, was prevented from making his defense in the former action. That service of summons by publication is proper in an action to quiet title to land in this state was expressly decided in the late case of Perkins v. Wakeham, 86 Cal. 580 .

“ It follows that, for aught that appears by the record in this case, the former judgment is conclusive evidence that the appellant is the owner of the lots in question, and that the findings of the trial court to the contrary are not justified by the evidence. I think the appeal from the judgment should be dismissed, that the order denying a new trial should be reversed, and a new trial granted:”