Bandow v. Wolven

• Decision Date: 06 April 1909
• Parties: BANDOW v. WOLVEN et al.
• Court: South Dakota Supreme Court

23 S.D. 124

120 N.W. 881

BANDOW

v.WOLVEN et al.

Supreme Court of South Dakota.

April 6, 1909.

On rehearing. Former opinion affirmed, as modified.

For former opinion, see 107 N. W. 204.

WHITING, J.

This cause comes before the court upon rehearing; the former decision of this court being found in Lovesta J. Bandow v. John W. Wolven, 20 S. D. 445, 107 N. W. 204. On such former hearing it was the order of this court that the judgment of the circuit court be reversed, and new trial ordered. Subsequently, it having been suggested to this court that, pending the appeal and prior to such former decision in this court, the appellant John W. Wolven had died, such former decision and judgment of this court were vacated, and the action continued against Edwin J. Wolven and James A. Provoost, as executors of the last will and testament of John W. Wolven, deceased. A rehearing was granted, and cause reargued.

We refer to the former decision of the court for a statement of the nature of the case and the issues therein, together with the opinion of this court at that time. We fully concur in the opinion of Justice Haney as regards the effect of section 2214, Rev. Pol. Code, as barring any action to set aside the tax deed for anything alleged as fatal thereto prior to the giving of notice of intention to take out tax deed. For the reasons hereinafter stated, we do not think the determination of the question of whether complying with the statute in regard to notice of expiration of period to redeem from tax sale and of intention to take out tax deed is a jurisdictional matter becomes essential to the decision of this cause, and we prefer to modify the former decision of this court to the extent of not determining that point; but in so doing we wish it understood that we do not hold such decision wrong, but simply leave the determination of this question to such time as it may become essential to the decision of some cause before this court.

By finding 10 the court found, among other things, “that said tax deed is regular on its face.” Finding 7 is the only other finding material to the point under consideration, and this finding is as follows: “That no legal service of notice of intention to take out tax deed on the land described in these findings was made or served by any person; that no such notice was served on any one, or in any manner other than by publishing such notice in three issues of a weekly newspaper in Hand county, S. D., and no...