I dissent. It appears beyond controversy that Annie H. Vail, defendant in the former action, was not personally served with summons therein as required by section 411 of the Code of Civil Procedure, nor was service waived. It is not pretended that anyone other than Crosbie attempted to serve the summons, and he failed, as found by the court, to serve it on Annie H. Vail. Furthermore, I think the tax deed, which is the foundation of the defendant's title, is void, as pointed out in the opinion of the District Court of Appeal written by Mr. Justice Houser. The plaintiff offered at the trial to reimburse the defendant on account of any moneys paid out by him in pursuit of the tax title or in or about the property. Because of the lack of jurisdiction on the part of the trial court in the former action and further because of the fatal defects in the tax proceedings relied upon by the defendant, the plaintiff's title should be quieted upon proper reimbursement to the defendant.
Waste, C.J., concurred.
Rehearing denied.
Waste, C.J., and Shenk, J., voted for a rehearing.