Board of Com'rs of Cowley County v. Herbert

• Decision Date: 04 October 1947
• Docket Number: 36809.
• Citation: 185 P.2d 153,163 Kan. 590
• Parties: BOARD OF COUNTY COM'RS OF COWLEY COUNTY v. HERBERT et al.
• Court: Kansas Supreme Court

185 P.2d 153

163 Kan. 590

BOARD OF COUNTY COM'RS OF COWLEY COUNTY v. HERBERT et al.

No. 36809.

Supreme Court of Kansas

October 4, 1947

Appeal from District Court, Cowley County; Albert Faulconer, Judge.

Action by the Board of County Commissioners of Cowley County Kansas, against Martha Herbert, Arthur Brown, and others to foreclose tax liens on various lots, wherein judgment was entered in behalf of the county, order of sale was issued sale was confirmed and sheriff's deed was issued to Jasper N. Powell for a certain lot owned by Arthur Brown. W L. Jackson, who asserted that he had purchased the lot from Arthur Brown under a contract, sought to have the judgment order of sale, confirmation thereof and sheriff's deed set aside. From a ruling sustaining a demurrer to the motion of W. L. Jackson, W. L. Jackson appeals and Jasper N. Powell moves to dismiss the appeal.

Appeal dismissed.

Syllabus by the Court.

When a judgment entered in favor of a county in a tax foreclosure case is sought to be set aside pursuant to G.S.1945 Supp., 79-2804b, the county is a necessary and 'adverse party' upon which notice of appeal to the Supreme Court must be served under G.S.1935, 60-3306.

Frank G. Theis, of Arkansas City, for appellant.

Earle N. Wright, of Arkansas City (George Templar, of Arkansas City, on the brief), for appellees.

BURCH Justice.

The appeal in this case is from a ruling of the district court sustaining a demurrer to a motion filed by the appellant to vacate and set aside a judgment, order of sale, confirmation thereof, and a sheriff's deed in a tax foreclosure proceeding. The appellant contends that under the provisions of G.S.1945 Supp., 79-2804b, equitable proceedings may be brought to open, vacate, modify and set aside any judgment rendered for taxes and that his motion set forth equitable grounds which would justify setting aside the judgment. We do not reach decision upon the question. This court is without jurisdiction because a necessary party to the appeal was not served with any notice of appeal.

The action was brought in the district court by the board of county commissioners of Cowley County, Kansas, against Martha Herbert and many others to foreclose tax liens upon various properties, including a certain lot which the appellant asserts he had purchased under a contract from Arthur Brown one of the defendants. The appellant had not received a deed for the lot at the time the action was brought. While the record is rather uncertain, it appears that the tax foreclosure action had proceeded to the point where judgment had been entered in behalf of the county, order of sale had been issued, the sale had been confirmed, and a sheriff's deed had been issued to Jasper N. Powell covering the involved lot. Thus, it will be seen that the county had recovered on its judgment for taxes in the action and that if the judgment and all subsequent proceedings were to be set aside, the rights of the county would be involved. The judgment of the district court in favor of the board of county commissioners will stand in view of the ruling of the district court unless this court, upon appeal, would conclude that the ruling was erroneous....