Emmons County v. Lands of First National Bank of Bismarck

Decision Date27 October 1900
CourtNorth Dakota Supreme Court

Appeal from District Court, Emmons County; Winchester, J.

Action by the County of Emmons against the lands of the First National Bank of Bismarck and others, to enforce payment of taxes on real estate delinquent in and prior to the year 1895 in such county. Judgment for defendants, and plaintiff appeals.


Order entered reversing the order appealed, and order entered denying the application to vacate tax judgments. Appellant recovered costs and disbursements.

George M. Register and Cochrane & Corliss, for appellant.

This appeal is from an order vacating, as null and void, a final judgment in tax proceedings under the tax law of 1897, and allowing the defendant, the owner of the land against which the judgment was rendered, to serve an answer in the case. The statute, in terms, declares that the proceedings under it constitute an action, and such is the holding of all the courts construing this and similar statutes. McHenry v Kidder County, 8 N.D. 413, 79 N.W. 875; Pine County v. Lambert, 58 N.W. 990; State v. Lands, 42 N.W. 476; In re Stutsman County, 88 F. 337; Wells County v. McHenry, 7 N.D. 246, 74 N.W. 241. The filing of the list is the filing of the complaint and also constitutes a notice of the pendency of such action. When the list is filed the clerk prepares a notice which with the list, is published for three weeks, and this notice constitutes the process, and the publication thereof the service of such process, and, upon default, judgment is entered as in other cases, but against the land and not against any person. Chap. 67, Laws 1897. The defendant has moved to vacate a final judgment in a civil action. The burden is upon him to set forth the specific grounds on which such judgment shall be vacated. As against his attack, the law presumes the judgment to be valid and regular and the court must consider only the defects, irregularities and grounds for vacating the same, which are embraced in the motion and supported by competent proof. 15 Enc. Pl. & Pr 286; Farrington v. New England Investment Co., 1 N.D. 108-109, 45 N.W. 191; Busching v. Sunman, 49 N.E. 1091. The claim that the judgment is void because entered by the clerk, is untenable. The entry of judgment is purely a ministerial act. The clerk is not called upon to pass upon any controverted issues of fact or question of law because the default of those interested in the land confesses the legality of the tax appearing upon the published list; besides the clerk has before him a prima facie case. The statute declares that the list filed with the clerk shall be prima facie evidence that all the provisions of law in relation to the assessment and levy of the tax have been complied with. § 9, chapter 67, Laws 1897; § 1585, Statutes of Minnesota, 1894; Bond v. Pacheco, 30 Cal. 530. The jurisdiction of the court does not depend upon there being a valid tax, but upon the fact that a complaint has been filed against the land claiming a certain tax to be legal, and the land itself brought within the jurisdiction of the court by the publication of the notice and list, which, under the statute, constitutes lawful service against the property. The courts construing similar statutes have uniformally held, that the jurisdiction of the court was not affected by the fact that the land was exempt from taxation, or that the tax had been paid. Chisago County v. Railway Company, 6 N.W. 854; Chauncey v. Wass, 30 N.W. 826. This holding necessarily assumes that the jurisdiction of the court does not depend upon the existence of a tax, for in each of these cases there was no tax; in the one case because there was no power to tax the land at all, and in the other case because the tax had been paid. The general plan and scheme of this tax law, as a whole, is that delinquency is the very issue tendered in these proceedings, and upon which the judgment is conclusive. Everything, whether payment of the tax, exemption of the property from taxation, illegality of the tax, or anything that would show the land was not delinquent in fact, is intended to be mere matter of defects. Chisago County v. Railway Co., 6 N.W. 454; Wallace v. Brown, 22 Ark. 118; Worthen v. Ratcliffe, 42 Ark. 330; Knoll v. Woelken, 13 Mo.App. 275; State v. Sargent, 12 Mo.App. 228; Mayo v. Foley, 40 Cal. 281; Cadmus v. Jackson, 52 Pa. 295; Gaylord v. Scarff, 6 Ia. 179; Gage v. Parker, 103 Ill. 528. One of the so-called jurisdictional defects in the assessment is, that the assessor did not assess the land from actual view or upon any reliable information, but that the land was arbitrarily valued and assessed at a sum in excess of the value placed upon other lands. This in no manner affects the jurisdiction. The taxpayer must, for an unequal assessment, seek redress before the administrative body established by law for the purpose of hearing his grievances. State v. Lakeside Land Co., 73 N.W. 970; State v. West Duluth Land Co., 78 N.W. 115. The other grounds of defects in the assessment and levy are, that in certain years the land was not properly described, and that levies were made by percentage and not in specific amounts and were made without being based upon an itemized statement. These defects do not take away the jurisdiction of the court to adjudicate that the taxes were legal. Wells County v. McHenry, 7 N.D. 246; In re Stutsman County, 88 F. 337. There was no affidavit of merits presented upon the motion and this is fatal to the order appealed from. Sargent v. Kindred, 3 N.D. 1; Kirschner v. Kirschner, 7 N.D. 291; Freeman, Judgments, 108; 6 Enc. Pl. & Pr. 187-188. No proposed verified answer was served with the moving papers. This is essential. 6 Enc. Pl. & Pr. 181-184; St. Paul, Etc. Ry. Co. v. Blackman, 44 Minn. 514. Defendant has been guilty of gross and inexcusable laches. The law proceeds on the theory that, this being a proceeding in rem, personal notice is not given, or required to be given to those who are interested in the res. Dausman v. St. Paul, 23 Minn. 394; 6 Enc. Pl. & Pr. 164-190. Section 9, chap. 67, Laws 1897, is taken from § 1588, Statutes of Minnesota 1894. The Supreme Court of Minnesota have held that a taxpayer cannot show, on the proceedings to obtain a tax judgment, that his land was not fairly assessed. State v. Lakeside Land Co., 73 N.W. 970; State v. West Duluth Land Co., 78 N.W. 115; McCurddy v. Prugh, 55 N.E. 154. The court acquired jurisdiction over the land by the publication of the statutory notice. Such mode of acquiring jurisdiction in such cases has been repeatedly sustained. Chauncey v. Wass, 30 N.W. 628; Francis v. Grote, 14 Mo.App. 324; Gage v. Parker, 103 Ill. 528; Wallace v. Brown, 22 Ark. 118; Dausman v. St. Paul, 22 Minn.. 394; Chisago County v. St. Paul Ry. Co., 6 N.W. 454; Commissioners v. Morrison, 25 Minn. 295; State v. Sargent, 12 Mo.App. 228; Watson v. Ulbrich, 18 Neb. 186-189. This is a proceeding in rem and not a proceeding against a person. The court takes jurisdiction of and proceeds against specified property exclusively; the final judgment is rendered against such property and not against any person. The statute forbids the setting aside of the sale by indirection, as by setting aside the judgment, and in proceedings to vacate the judgment after the sale has been made, except on the ground of want of jurisdiction would be futile. § 15, chap. 67, Laws 1897; Chauncey v. Wass, 30 N.W. 828. The legislature may prescribe the time within which a party may obtain relief against a judgment. Sargent v. Kindred, 5 N.D. 472; 6 Enc. Pl. & Pr. 197; Chauncey v. Wass, 30 N.W. 831. It is the fact of the service of process or the publication of notice that gives jurisdiction, and not the proof thereof. It is elementary that the proof of service may be filed at any time or the fact of service established by any competent evidence. Cowan v. Farrell, 7 N.D. 397; Lawrence v. Howell, 2 N.W. 617; Hugh v. Clark, 66 N.W. 262; Bernett v. Blatz, 46 N.W. 319; Frisk v. Reigelman, 43 N.W. 1117; Commissioners v. Morrison, 22 Minn. 179; Southern Pacific Fruit Exchange v. Starum, 54 P. 345. Courts have frequently reversed orders vacating judgments, even in cases involving discretion, on the ground of the abuse thereof, and such orders will always be reversed when illegally granted. Bailey v. Laffee, 29 Cal. 422; Dausman v. St. Paul, 23 Minn. 394; Gauthier v. Rusicka, 3 N.D. 1; Kirschner v. Kirschner, 7 N.D. 291; Sargent v. Kindred, 5 N.D. 472. Even when the motion is made within the time fixed by statute it will be denied if the party has been guilty of laches. 6 Enc. Pl. & Pr. 192; Gerrish v. Johnson, 5 Minn. 10; Groh v. Bassett, 7 Minn. 254; Altman v. Gabriel, 28 Minn. 134. The order is appealable. It is an order made after final judgment affecting a substantial right. Petition of St. Paul & Duluth Ry Co., 6 N.W. 454.

F. H. Register, Stevens & Allen, and H. A. Armstrong, for respondents.



In this action (improperly entitled a "proceeding") the District Court for Emmons county, by an order dated February 28, 1900, vacated, as void, and set aside, certain tax judgments entered by said court against certain lands and described in said tax judgments. The judgments so vacated were entered pursuant to chapter 67 of the act of 1897 authorizing actions to be commenced to recover taxes becoming delinquent in 1895 and prior years, together with the interest, penalties, and costs therein. Emmons county has appealed to this court from such order, and the record embraces the order itself, and all of the papers upon which the order is based, which include the proceedings in the actions in which said tax judgments were entered, and the...

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