Kipp v. Collins

• Decision Date: 25 May 1885
• Citation: 23 N.W. 554,33 Minn. 394
• Parties: KIPP AND ANOTHER v COLLINS.
• Court: Minnesota Supreme Court

33 Minn. 394

23 N.W. 554

KIPP AND ANOTHERvCOLLINS.

Supreme Court of Minnesota.

Filed May 25, 1885.

Appeal from a judgment of the district court, Anoka county.

Samuel O. Kipp, for appellants, Sylvester Kipp and another.

W. Hammons, for respondent, James Collins.

GILFILLAN, C. J.

The statute under which this tax sale was had prescribes (section 116, c. 1, Laws 1874) that the judgment “shall be substantially in the following form.” Then follows the form. The judgment need not follow the form literally. If it contain the substance, it is enough. It is not every recital in the form, that is of substance to the judgment, that is essential to its validity. There are certain recitals of fact in the form, the falseness of which, inserted in the judgment, will not affect its validity. The form given commences with the title of the proceedings; then follows a recital of jurisdictional facts,-i. e., of the filing of the list, and the publication of the list and notice; after which follow the recital of matters only of procedure after jurisdiction acquired,-i. e., of no answer having been filed, and of more than 20 days having elapsed since the last publication of the list and notice,-and then follows the determination or judgment. This last, though it need not be expressed in the judgment in the precise words of the form, should contain every element of it, otherwise there would be a judgment such as the statute does not authorize. The recital that no answer has been filed, and that more than 20 days since the last publication of the list and notice have elapsed, may be false; there may have been answers filed, and the 20 days may not have elapsed at the time of entering the judgment; but that would not affect its validity as a judgment. It would be only a case of irregularity, which would make the judgment liable to be set aside, but would not make it void. Recitals, on the truth or falsity of which the judgment does not depend for its validity, can hardly be deemed matters of substance in determining its validity.

We conclude, therefore, that the omission of the recitals of no answer having been filed, and of more than 20 days having elapsed, does not impair the judgment. That being valid on its face, it raises the presumption of jurisdiction in the court to render it,-a presumption that can be removed, if at all, only by proof that it had not jurisdiction. That the defendant undertook to establish the jurisdictional facts by other proofs, and that such other proofs fell short, did not lessen the force of the presumption. The judgment, after determining the amount for which each parcel of land is liable, adjudges that unless that amount be paid such parcel be sold as provided by law to satisfy such amount.

The statute (section 122, c. 1, Laws 1874) provided that, “after twenty days from the date of any tax judgment, if the amount therein charged shall not have been paid, the county auditor shall sell the pieces or parcels of land upon which taxes stand charged in said judgment.” The duty and authority of the auditor to sell were not made to depend on anything else, such as the delivery to him of a certified copy of the judgment. Both depended on the statute and judgment only, and attached at once after the lapse of 20 days from the date of the judgment. The certified copy of the judgment which section 121 provided the clerk was to enter in a book...