Emmons County v. Thompson
| Decision Date | 13 November 1900 |
| Citation | 84 N.W. 385,9 N.D. 598 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Emmons County; Winchester, J.
Order reversed, and order entered denying the application to vacate judgment and tax sale, with costs to appellant.
George M. Register and Cochrane & Corliss, for appellant.
The judgments are not void because the county treasurer did not immediately after the passage and approval of the law make and file in the office of the District Court of his county a list of delinquent taxes upon real estate. The provision of this section is directory. Banning v. McManus, 53 N.W. 635; Kipp v. Dawson, 31 Minn. 380; 23 Am. & Eng. Enc. L. 458; Suth. St. Cr. § 446; Johnson v Day, 2 N.D. 295-299; Hennepin County v Baldwin, 65 N.W. 80; State v. Lean, 9 Wis. 392. The resolution of the board of county commissioners designating the paper was sufficient. Kipp v Dawson, 60 N.W. 845. The resolution designating the paper is not void because the same was adopted at a special meeting of the board. The object stated in the notice appearing in the record is plainly an object to proceed to business under the provisions of chapter 68 of the Laws of 1897. The notice contains a general statement that the object of the meeting is to transact any other business that may come before the board. All the members of the board were present at the special meeting and decided to transact general business. When the board unanimously decided to take up general business, all the rules governing such bodies are applied to their deliberations, and a mere majority may adopt a measure the same as at other meetings. White v. Fleming, 114 Ind. 574; Wilson v. Board, 68 Ind. 507; Prezinger v. Harness, 114 Ind. 494; 1 Dill. Mun. Corp. 202; Stow v. Wysce, 18 Am. Dec. 1013 and note; Pike County v. Roland, 94 Pa. 238; Douglas v. Baker County, 23 Fla. 419, 2 South. Rep. 776; People v. Carver, 2 Colo.App. 136; Jones v. Cullen, 142 Ind. 335. At any rate the record does not show that any member of the board was absent, or that any member of the board objected to take up the subject of designating a newspaper in which to publish the notice. It appearing that a meeting of the board was held at which business was transacted, which it only had a right to do at a legal meeting, it will be presumed, if necessary, and nothing to the contrary being shown, that all its members were present and acted. Prezinger v. Harness, 114 Ind. 494; Lewick v. Glazier, 74 N.W. 717; Tierney v. Brown, 17 Am. St. Rep. 679. The claim that judgment was entered for an excessive amount is, of course, a claim that does not affect the jurisdiction of the court. No judgment is void because it is entered for a larger amount than it should have been entered for. Shattuck v. Smith, 6 N.D. 56; Kipp v. Dawson, 31 Minn. 377. The contention that the affidavit annexed to the list is defective is entirely without merit. Reimer v. Newell, 49 N.W. 865; Kipp v. Dawson, 32 Minn. 380.
J. E. Robinson, for respondents.
The county treasurer of Emmons county did not immediately after the passage and approval of chapter 67, Laws 1897, make and file in the office of the clerk of the District Court of his county, a list of taxes upon real estate as required by section one of the act, and no such list was filed until six months after the passage and approval of the act. He did not annex to the list an affidavit as required by statute. The newspaper in which the tax list was published was never designated by resolution of the board of county commissioners of Emmons county. Cass County v. Security Improvement Co., 7 N.D. 528. The resolution of the board designating a newspaper was passed at a special session held on June 5th, 1897, under a call from the county auditor. Nothing was said in the call of the designation of a newspaper for the publication of the delinquent tax list. The call not specifying such object, the act of designation of a newspaper was void when had at this special meeting. § 1898, Rev. Codes; Thomp. Corp. § § 707-709- 710-717-718; Angel & Ames, Corp. § 489; Dillon, Mun. Corp. § 265; School District v. Atherton, 12 Metc. 105; Little v. Merrill, 12 Pick. 543; Perry v. Dover, 12 Pick. 206; Bloomfield v. Charter Oak Bank, 121 U.S. 121. The judgment entered against each tract of land was largely excessive and unauthorized. It must appear from the recitals of the record that the facts existed which authorized the court to act, and that in acting the court kept within the limits of its lawful authority. Cooley on Taxation (2d Ed.) 526; Blackw. Tax Titles, § § 354-355; McClum v. Ross, 5 Wheat. 116; Thatcher v. Powell, 6 Wheat. 119. When a statute authorizes a proceeding which was not allowed by the general law before, and directs the mode in which the act shall be done, the mode pointed out must be strictly pursued. Suth. St. Cr. § 454. When the power to effect property is conferred by statute upon those who have no personal interest in it, such power can be exercised only in the manner and under the circumstances specified. Koch v. Bridges, 45 Miss. 247; United States v. Wyngall, 5 Hill. 16; Gilpin v. Abbott, 6 Mich. 17; In re Selby, 6 Mich. 193; O'Donnell v. McIntyre, 37 Hun. 615; Whitney v. Thomas, 23 N.Y. 287. A notice of a special meeting of "the transaction of any other business that may come before the board" is not sufficient. Hayden v. Noyes, 5 Conn. 391; Bloomfield v. Charter Oak, 121 U.S. 132; Willard v. Kinneyworth, 8 Conn. 247-254; Little v. Merrill, 10 Pick. 543; Reynolds v. New Salem, 6 Metc. 340; Peoples Mut. Ins. Co. v. Westcott, 14 Gray, 440; Dill. Mun. Corp. § 268; Jones v. Andover, 9 Pick. 146; Rand v. Wilder, 11 Cush. 294; Hunt v. School District, 14 Vt. 300; 39 Am. Dec. 225; Hosdell v. Hancock, 3 Gray, 526; Terry v. Milbury, 21 Pick. 64; Blackburn v. Wadpole, 9 Pick 97; Baker v. Shepard, 24 N.H. 208.
The order appealed from bears date December 5, 1899, and in terms vacates and sets aside a certain tax judgment, and a tax sale made thereunder, and allows the owner of the tract of land involved to file an answer to the complaint in the action. The land involved is situated in Emmons county, and belongs to one Hiram R. Thompson, and is described as follows: The S.W. 1/4 of section 22, in township 135, of range 75. The order of the District Court was based wholly upon an affidavit made by one Henry A. Armstrong, and the order contains the following recital: "It appearing to the court that the allegations and material statements set forth in the affidavit of Henry A. Armstrong therein are true, and that the judgment rendered, and the sale made thereunder, are null and void," etc. Then follows the order vacating and setting aside the judgment and sale, and allowing the owner to file an answer. The judgment referred to in the order is a certain tax judgment against the land above described, which was entered on the 14th day of October, 1897, and the tax sale thereunder was made on December 6, 1897. The judgment was entered and sale made under the provisions of chapter 67 of the Laws of 1897, authorizing the District Court, under conditions named in said chapter, to enter judgments against lands for taxes thereon which became delinquent in 1895 and prior years. The record shows that no counter affidavits were filed in the District Court, and, so far as appears, none of the records in the tax case was offered in evidence before the District Court at the hearing which culminated in the order in question. We are therefore confined, in passing upon the case, to the averments embraced in said affidavit of Henry A. Armstrong. In our judgment, the case can properly be disposed of on its merits, without quoting said affidavit in full, nor shall we do more than set out the substance of such allegations therein as are deemed pertinent to the controlling questions which are presented for determination. By the terms of said order, the District Court has wholly vacated and set aside said tax judgment and sale, and it appears that this was done because, in the opinion of that court, said judgment was not merely irregular, but was "null and void." This is, of course, tantamount to a declaration that the court in entering said tax judgment was without jurisdiction to enter the same, for the reason that a judgment entered by a court of competent jurisdiction, and which is intelligible in its terms, is not, and cannot be, absolutely "null and void." The affidavit upon which the order was based also declares, in terms, as follows: "Affiant further states and alleges that the said judgment so entered as aforesaid was and is void for the following reasons, to-wit," etc. We call particular attention to the terms of the affidavit and the order, for the purpose of showing that neither the court below nor counsel for the moving party regarded the application as one made to the favor of the District Court, or as one based upon a mere irregularity of procedure. The application, on the contrary, was made and granted expressly upon the theory and ground that the judgment was void, and we shall therefore so treat the case in this court. But, in confining ourselves to the one matter of jurisdiction, we do not desire to suggest that this particular judgment was or is vulnerable to attack upon any ground of mere irregularity in entering the same. Irregularities in entering judgments may be cured if properly and seasonably pointed out to the court in which they occurred, but the right to do so is often lost by the lapse of time, by...
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