In re Stutsman County

• Decision Date: 24 June 1898
• Citation: 88 F. 337
• Parties: In re STUTSMAN COUNTY, N.D.
• Court: U.S. District Court — District of North Dakota

88 F. 337

In re STUTSMAN COUNTY, N.D.

United States Circuit Court, D. North Dakota, Southeastern Division.

June 24, 1898

Frederic Baldwin and S. E. Ellsworth, for complainant.

James B. Kerr, for defendant.

AMIDON District Judge.

Chapter 67 of the Laws of 1897 of the state of North Dakota makes provision for the collection of delinquent taxes by a proceeding in the district court. The enactment is taken from a statute that has long been in force in the state of Minnesota. Section 1 provides that the county treasurer shall make a list of all taxes upon real estate in his county which have been delinquent for certain years. The list is required to contain a description of the parcels of land upon which the taxes have not been paid, and opposite such description the name of the owner to whom assessed, if known, and the amount of the tax, with penalty and interest. Such list is to be verified by the affidavit of the treasurer, and is then filed in the office of the clerk of the district court of the county. 'The filing of such list shall have the force and effect of the filing of a complaint in an action by the county against each piece or parcel of land in such list described, to enforce against it the taxes therein appearing against it, and the penalties and interest for the several years for which such taxes shall remain unpaid, and to obtain a judgment or decree of the court for the sale of such piece or parcel of land to satisfy the amount of such taxes remaining unpaid, with penalties, interest, and costs; and also the effect of notice of the pendency of such action, to all persons interested in such lands. ' Section 2 provides that, in case the land is rented, a writ of attachment shall issue, upon the application of the county treasurer, to seize such rents, and have the same applied in payment of the taxes. Sections 3 and 4 provide that the clerk shall make a copy of the list so filed with him, and shall publish the same in a newspaper in the county once in each week for three consecutive weeks, and shall attach to the list as thus published a notice to all persons who have or claim any estate, right, title, or interest in, or claim to, or lien upon, any of the several parcels of land in the list described, stating, in substance, that the list has been filed by the county treasurer pursuant to the act in question, and requiring each of such persons within 30 days after the last publication of the notice to file in the office of the clerk of the court his answer, in writing setting forth any objection or defense against the tax, or penalty, or interest thereon, as to any piece or parcel of land described in the list as to which he claims any interest or lien; and in default thereof that judgment will be entered against such piece or parcel of land for the taxes in the list appearing against it, and for all penalties, interest and cost. Section 5 requires answer to be filed in the office of the clerk of the district court within 30 days after the last publication of the notice, verified as pleadings in civil actions, and setting forth the defense or objections to the tax or penalty. Section 6 provides for judgment by default as to parcels in respect of which no answer is filed. Section 7 provides as follows: 'In answer shall not be filed within the time hereinbefore provided as to the taxes or penalties upon any pieces or parcels of land embraced in such list as published, such answer shall stand for trial at any general term of the district court in the county. * * * The court shall proceed without delay, without a jury, and summarily hear and determine objections or defenses made by the several answers, and shall dispose of all such answers and direct judgment accordingly, at said term, and in the trial thereof shall disregard all technicalities and matters of form not affecting the substantial merits, and any person making answer as herein provided, shall be entitled to a separate trial upon the issues raised by his answer. ' Section 8 provides for the entry of judgment for the amount of taxes if the court at the hearing shall sustain the same. If the court sustains the defense to the taxes and penalties as to any parcel of land such parcels are by the judgment discharged from the taxes in the list set down against them, and from all penalties, and the court may, in its discretion, award disbursements against the county laying such taxes, and in favor of the party answering, as to the pieces or parcels so discharged. Section 9 provides that, if all the provisions of law in force at the time of the assessment and levy in relation to the assessment and levy of taxes shall have been complied with, of which the lists so filed with the clerk shall be prima facie evidence, then judgment shall be rendered for such taxes, and the interest, penalties, and costs. But no omission of any of the things provided by law in relation to such assessment and levy, or of anything required by an officer to be done prior to the filing of the list with the clerk shall be a defense or objection to the taxes appearing on any piece or parcel of land unless it be also made to appear to the court that such omission resulted to the prejudice of the party objecting, or that the taxes against such piece or parcel of land have been partially, unfairly, or unequally assessed; and in such case, but in no other, the court may reduce the amount of taxes upon such piece or parcel, and give judgment accordingly. It is a defense when made to appear by answer and proof that the taxes have been paid, or that the property is lawfully exempt from taxation. Section 10 provides that the judgment which the court shall render shall be final, except that upon application of the county, or other party against whom the court shall have decided the point raised by any defense or objection, the court may, if in its opinion the point is of great public importance, or likely to arise frequently, make a brief statement of the facts established bearing on the point, and of its decision, and forthwith transmit the same to the clerk of the supreme court. Provision is then made for a speedy trial by the supreme court of the question so certified. The remaining provisions of the act relate to the sale of property against which judgment has been entered by execution issued upon the judgment.

Under the provisions of this act the treasurer of Stutsman county filed a list of delinquent taxes in the office of the clerk of the district court of that county. Among the lands appearing in this list are several hundred parcels formerly owned by the Northern Pacific Railroad Company, and now held by Edwin H. McHenry and Frank G. Bigelow, as receivers appointed in an action pending in the circuit court of the United States for the district of Wisconsin, on the 25th day of May, 1896, and in the same action, in the circuit court of the United States for the district of North Dakota, on the 27th day of May, 1896. Within the time provided by the statute for answering, the receivers presented their petition, together with a bond, to the district court of Stutsman county, for the removal into this court.of the controversy existing between them and the county. Thereafter motion was made by counsel for the county to remand the cause to the state court. Jurisdiction of this court is asserted upon two grounds: (1) That the suit presents a controversy wholly between citizens of different states, to wit, between the county of Stutsman, a corporation organized under the laws of the state of North Dakota, and the petitioners, one of whom is a citizen of the state of Minnesota and the other a citizen of the state of Wisconsin. (2) That the suit arises under the laws of the United States. Jurisdiction of this court is resisted upon the grounds: First, that the proceeding for the collection of delinquent taxes provided by the statute of North Dakota is not a 'suit' within the meaning of the act of 1887 and 1888; second, that such proceeding, if it is a suit, is not a suit of which the federal courts are given original jurisdiction; third, that there is no separable controversy in the proceeding between the county of Stutsman and the petitioners; fourth, that, the notice to answer being addressed to all persons having any interest in or lien upon the property, it may well happen that there are other persons who are residents of North Dakota who are entitled to answer and defend against the taxes, and that for this reason the action, even as to the taxes against the property of the petitioners, involves defendants whose presence would defeat the jurisdiction of this court; fifth, that there may be other persons who have a right to...