Hooker v. Bond

• Decision Date: 27 September 1898
• Citation: 76 N.W. 404,118 Mich. 255
• Court: Michigan Supreme Court
• Parties: HOOKER v. BOND ET AL.

76 N.W. 404

118 Mich. 255

HOOKER v. BOND ET AL.

Supreme Court of Michigan

September 27, 1898

Appeal from circuit court, Wayne county, in chancery; Joseph W Donovan, Judge.

Petition by Joseph Hooker against William G. Bond and others for a writ of assistance under a tax deed. From an order denying the writ, petitioner appeals. Reversed.

Charles C. Stewart, for appellant.

Albert J. Chapman, for appellees.

GRANT C.J.

The petitioner, Joseph Hooker, presented his petition to the court below for the writ of assistance under his tax deed issued to him for delinquent taxes for the year 1892. The court denied the writ. The defendant Estella Murgittroyd is the owner of the original title. The validity of the proceedings under which petitioner obtained his deed is attacked for the following reasons: (1) The tax law of 1893 is unconstitutional, in that it permits landowners to be deprived of their property without due process of law. (2) The provision authorizing the issuance of the writ of assistance is void. (3) No demand for the payment of the taxes was made of the person liable to pay them. (4) The property was not assessed to the owner. (5) The collector did not seize and sell personal property to pay the tax. (6) No order pro confesso was ever entered. (7) No decree was made and entered of record in the proper book in the office of the register in chancery. (8) The decree does not contain a description of the property. (9) No certified copy of the decree was annexed to the tax record in the county treasurer's office. (10) The decree was not enrolled. (11) The decree was not rendered 10 days before the day fixed for the sale.

The first and second objections are disposed of by Ball v. Copper Co. (handed down simultaneously with this decision) 76 N.W 130. All the other objections, except the eleventh and ninth are controlled by former decisions of this court. Muirhead v. Sands (Mich.) 69 N.W. 826; Auditor General v. Sparrow (Mich.) 74 N.W. 881; Mercereau v Miller (Mich.) 70 N.W. 341; Jenkinson v. Auditor General, 104 Mich. 37, 62 N.W. 163; Iron Star Co. v. Wehse (just decided) 76 N.W. 66; Hochgraef v. Hendrie, 66 Mich. 560, 34 N.W. 15. All of these objections relate to questions over which the court in the tax proceeding had jurisdiction, and are foreclosed by that decree. The only way in which the defendant owner could have contested them was by appearing in that case, or, within the time provided, filing her petition to open the decree. The statute clothes the court of chancery with general jurisdiction over these proceedings. It does not lose jurisdiction by the failure of any officer to perform the acts imposed upon him within the time fixed by the law, unless the taxpayer is deprived of some right, or unless the law, by negative language, prohibits the doing of the act at any other time. It should clearly appear that the act was mandatory. Otherwise it will be held directory. If the taxpayer is not injured by the failure of the officer to act within the time prescribed, the failure does not render the decree and sale void. Justice Cooley states the rule as follows: "The fixing of the exact time for the doing of the act is only directory, where it is not fixed for the purpose of giving a party a hearing or for any other purpose important to him." Cooley, Tax'n, 219. This rule is supported by Black, Interp. Law, � 126; End. Interp. St. �� 431, 436; Blackw. Tax Titles, � 468; People v. Doe, 1 Mich. 451; Sibley v. Smith, 2 Mich. 486. Where a statute requires venires for grand jurors to be issued at least 40 days before the second Monday of September, a venire issued in less than 40 days was held valid, it being in season for service by the officer. State v. Smith, 67 Me. 328. A similar question was before the supreme court of the United States involving the tax law of the territory of Arizona, and it was held that the objects of these provisions as to time was to secure prompt action, but that the court would not lose jurisdiction to enter a decree by failing to act within the time prescribed. The court in that case say: "But, inasmuch as this proceeding is one in a court of general jurisdiction, it would require very precise and prohibitory language in the statute in order to withhold from that court the ordinary functions and...