Loup County v. Rumbaugh

• Decision Date: 07 July 1949
• Docket Number: 32525.
• Citation: 38 N.W.2d 745,151 Neb. 563
• Parties: LOUP COUNTY v. RUMBAUGH.
• Court: Nebraska Supreme Court

38 N.W.2d 745

151 Neb. 563

LOUP COUNTY v. RUMBAUGH.

No. 32525.

Supreme Court of Nebraska

July 7, 1949

Syllabus by the Court.

1.The general rule is that, while the court will take judicial notice of its own records, it will not in one case take judicial notice of the record in another case.

2.However, where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in former proceedings involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action.

3.An irrigation district is a public corporation and the powers of its officers and directors are limited by the terms of the statute under which the district was created.

4.There is no statutory authority in this state authorizing a county board of equalization to assess and levy taxes against landowners and school land leasehold owners within an irrigation district to pay judgments obtained against such public corporations.

5.It is a general rule with respect to domestic judgments that they cannot be collaterally impeached by the parties for collusion or fraud not going to the jurisdiction, and that consent judgments are as conclusive on collateral attack as judgments rendered after a trial.

6.If the judgment was collusive or by the consent of an officer to a matter with respect to which he had no authority to bind the public, and it was not a decision by the court after a hearing on the merits, it does not afford a basis for a plea of res adjudicata as against the public interest involved.

7.If a suit is devised for the purpose of having a certain judgment entered, it will not be binding upon the public or those who are not parties to the scheme adopted for that purpose.

8.When a county brings an action to foreclose a tax sale certificate against a school land leaseholder within an irrigation district, a public corporation, and the taxes constituting the basis of the action were assessed and levied by the county board of equalization without statutory authority to pay judgments obtained against the district, the county cannot successfully maintain the foreclosure suit against the leaseholder.

Davis & Vogeltanz, Ord, for appellant.

A F. Alder, Taylor, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE Justice.

This is a tax foreclosure action brought by Loup County, Nebraska, as plaintiff, against Charles A. Rumbaugh and Rosale Rumbaugh his wife, to foreclose irrigation taxes levied and assessed upon the school land leasehold interest held by defendants upon land owned by the state.

The plaintiff's amended petition alleges in substance that the school land leasehold interest in that part of Section 36, Township 24 North, Range 19 West of the 6th P. M., in Loup County, Nebraska, contained within the boundaries of the Calamus Irrigation District, was duly, legally, and regularly assessed and taxes levied thereon by the county board of Loup County, the board of directors of said irrigation district having neglected and refused to make such a levy for and as an irrigation tax the most of the years from 1928 to 1942 said irrigation tax being for the payment of judgments rendered and in force against said irrigation district for expenses growing out of, connected with, and incident to the organization of said district, and for the payment of principal and interest of outstanding bonds, otherwise designated as warrants, of said irrigation district; that said taxes were not paid when due and became delinquent; that on July 2, 1945, after said property was duly advertised and offered for sale at public auction by the county treasurer of Loup County, as provided by law, for the taxes levied for each of said years, and said property remaining unsold for each of said years for want of bidders, the property was, pursuant to proper resolution of the county board in the manner and form provided by law, for the use and benefit of plaintiff, and on said date sold to plaintiff for the sum of $1,251.40, for the amount of taxes, interest, penalty, and expenses thereon; and that the county treasurer did issue to plaintiff county treasurer's tax-sale certificate No. L 100, and the plaintiff is now the owner and holder of said tax-sale certificate which remained in the custody of the county treasurer, subject to assignment of any person wishing to buy for the sum expressed on the face thereof, and interest thereon as provided by law.The plaintiff then set up its lien and the authorization of the county attorney to proceed to foreclose the tax-sale certificate in the name of the plaintiff as trustee for itself and for the municipal subdivisions for which said taxes were assessed and levied.The plaintiff further alleged that the defendantCharles A. Rumbaugh was at all times mentioned the record title owner of said leasehold by virtue of school land lease as indicated by the records in the office of the county treasurer of Loup County; and that the right and title of each of said defendants in the property above described, are subject, junior, and inferior to the lien of the plaintiff, and the plaintiff was entitled to a foreclosure.The prayer of the amended petition is in the usual form for an accounting, foreclosure, and declaration of liens.

The defendants' answer, for the purposes here to be considered, denied generally the allegations of the amended petition not admitted; specifically denied that the county board of Loup County, Nebraska had any power to levy the taxes for the payment of a judgment, or judgments, against the Calamus Irrigation District as alleged; alleged that the levying of said taxes was null and void, and the same could not become a lien against any of the real estate in suit and upon which the defendantCharles A. Rumbaugh had a school land lease; that no proper and sufficient proceedings were had for the levying of any of said taxes; and prayed dismissal of the plaintiff's case.

On October 22, 1947, the district court entered a decree and judgment of tax foreclosure in favor of the plaintiff and against the defendants, upon the school land leasehold of Charles A. Rumbaugh, as set out in the amended petition.Upon the overruling of the motion for new trial, the defendantCharles A. Rumbaugh appeals.

For convenience the parties will be referred to as originally designated in the district court.

It appears from the record that on September 29, 1927, an action was brought in the United States District Court for the district of Nebraska, Grand Island division, by Greenshields & Everest Company, a corporation, Trustee, organized and existing under the laws of the State of Iowa and a resident and citizen of that state, against the Calamus Irrigation District, a corporation, which, by stipulation of the parties, was transferred to the Omaha division of said court.

The petition alleged, among other matters, that on December 16, 1925, the defendant, for a valuable consideration, duly and legally executed, sold, and delivered nine certain warrants of the Calamus Irrigation District of the denomination of $500 each, payable to bearer, and which were presented for payment on December 23, 1925.The payment was refused.The plaintiff prayed judgment for the amount of $4,500, with interest and costs.The defendant, by one Roy M. Harrop its attorney, filed an answer alleging the defendant to be a corporation de jure or de facto, with full power to exist and operate as such, subject to be questioned by quo warranto, or otherwise, as to its corporate capacity only by the State of Nebraska; admitted the diversity of citizenship of the plaintiff and defendant and the value of the subject matter in suit; admitted that in the year 1925 it executed, sold, and delivered its nine warrants, payable to bearer, as described in the plaintiff's petition and which were registered December 23, 1925; alleged that it was advised by competent legal authority of this state and an adjoining state of its liability on said warrants, and would confess judgment thereon but for the matter thereinafter pleaded, which constituted a proper subject of adjudication.This matter was with reference to an action pending in the district court for Loup County having to do with obtaining authority to issue bonds in the amount of $163,000 for the purpose of providing a construction fund for the district.The proceedings with reference to this matter are alleged, and are not necessary to be set out.The defendant prayed the judgment of the court that it is and at all times has been, a public corporation and acted as such, and in the exercise of its powers it duly and legally executed, sold, and delivered its nine warrants as set forth in the plaintiff's petition, payable to bearer, and duly registered the same December 23, 1925, and that the plaintiff be required to make strict proof of the amount, if any, due and owing it and have nothing further by its suit.

On October 24, 1927, the court found that the defendant is and was on July 20, 1925, and at all dates mentioned in plaintiff's petition, a duly and legally created, organized, and existing irrigation district under the laws of the State of Nebraska; that it was a public corporation duly and legally organized, and set forth the names of the officers of the defendant and the real estate embraced within the irrigation district.The court rendered judgment in favor of the plaintiff and against the defendant, in the amount of $4,762.50, with interest and costs, and made the judgment a lien on the real estate described in the order and judgment.

The landowners and leasehold owners within the Calamus...