Old Republic Min. Co. v. Ferry County

• Decision Date: 21 August 1912
• Citation: 125 P. 1018,69 Wash. 600
• Court: Washington Supreme Court
• Parties: OLD REPUBLIC MINING CO., Limited, v. FERRY COUNTY et al.

125 P. 1018

69 Wash. 600

OLD REPUBLIC MINING CO., Limited, v. FERRY COUNTY et al.

Supreme Court of Washington

August 21, 1912

Department 2. Appeal from Superior Court, Ferry County; Ernest Beck Judge.

Action by the Old Republic Mining Company, Limited, against Ferry County and another. From a judgment for defendants, plaintiff appeals. Affirmed.

John Salisbury and E. C. Macdonald, both of Spokane, for appellant.

John W Mathews, of Pullman, for respondents.

FULLERTON J.

This action was brought for the purpose of setting aside a sale of certain mining claims made by the county of Ferry in a general foreclosure proceeding instituted to enforce the payment of delinquent taxes. A general demurrer was interposed and sustained to the complaint, and on the election of the plaintiff to stand thereon judgment to the effect that it take nothing by its action and for costs was entered against it. This appeal followed.

In support of its appeal, the appellant makes four principal contentions, namely: (1) That the sale is invalid for want of a sufficient description of the property sold; (2) that the property was assessed in solido, whereas the law requires that each separate parcel be assessed separately; (3) that the summons in the foreclosure proceedings failed to comply with the requirements of the statutes, and was therefore void; and (4) that it does not appear from the record that the county treasurer gave the statutory notice of the time and place of the foreclosure sale.

With reference ot the description, it appears that in the assessment rolls and the foreclosure proceedings the claims were described as the 'Republic Lode' and the 'Cecelia Lode'; each description being followed by a statement of the number of acres contained therein. The names used were the names given the claims in the government patents, except that the Cecelia Lode was called therein the 'Cecelia Fraction.' But we think, neverthelesss, the description sufficient to identify the properties. It must be remembered that the appellant is attacking the judgment of foreclosure collaterally, and all intendments are in favor of the regularity of the judgment. Therefore, in the absence of a showing that these claims could not be found and located from the description given, the court will presume that they can be so found and located, and this is all that is required of a description of property in a deed of conveyance. Sengfelder v. Hill, 21 Wash. 371, 58 P. 250; Newman v. Buzard, 24 Wash. 225, 64 P. 139.

Whether there is any foundation for the claim on which the second objection is based, the record does not disclose, as the manner in which the property was assessed in this respect is not shown. In the certificate of delinquency, the 'total amount' of the assessment is given in one lump sum, and it may be that under certain circumstances we would presume that the valuation on the assessment roll was in similar form; but we will not so presume, where the effect of the presumption is to invalidate the assessment. As we have stated, the presumption is in favor of the regularity of the proceedings, and they will be presumed valid, unless the contrary clearly appears on the face of the record.

The service of the summons upon the appellant in the tax foreclosure proceedings was made by publication. The summons as published, was directed to the appellant, and summoned and required it 'to appear within sixty (60) days after the eleventh day of August, A. D. 1906, and defend the above-entitled action, or pay the amount due upon the certificate,' etc. The statute (Rem. & Bal. Code, § 9253) provides that, where service of the summons in a tax foreclosure proceeding is made by publication, the summons shall contain 'a direction to the owner, summoning him to appear within sixty days after the date of the first publication of the summons, exclusive of the day of said first publication, and defend the action or pay the amount due.' The form given to which the published summons must substantially comply is as follows: 'In the Superior Court of the State of Washington for the County of _____. ________, Plaintiff, v. ________ Defendant. No. _____. The State of Washington to the Said (naming the defendant or defendants to be served by publication): You are hereby summoned to appear within sixty days after the date of the first publication of this summons, to wit, within sixty days after the ___ day of _____, 1___, and defend the above-entitled action in the above-entitled court, and answer the complaint of the plaintiff, and serve a copy of your answer upon the undersigned attorneys for plaintiff, ________, at his (or their) office below stated; and in case of your failure so to do, judgment will be rendered against you according to the demand of the complaint, which has been filed with the clerk of said court. (Insert here a brief statement of the object of the action.) ________, Plaintiff's Attorneys. P. O. Address, _____, County, _____, Washington.'

It is objected to the published summons in the instant case that it does not maintain a direction to the defendant 'summoning him to appear within sixty days after the date of the first publication of the summons, exclusive of the day of said first publication.' In other words, it is contended that the summons, in order to be valid, must follow the form prescribed by the statute, and summon the defendant 'to appear within...