Phelps County v. City of Holdrege
| Decision Date | 06 July 1937 |
| Docket Number | 30100. |
| Citation | 274 N.W. 483,133 Neb. 139 |
| Parties | PHELPS COUNTY v. CITY OF HOLDREGE ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
The declaratory judgment law is not a substitute for new trial or appeal, nor does it operate to supersede former adjudications or proper proceedings already pending in a court having jurisdiction of parties and subject-matter.
Original action for declaratory judgment by Phelps County, Nebraska, a corporation, against the City of Holdrege, a corporation, and others.
Proceeding dismissed.
The defendant in a tax lien foreclosure action was barred from right of redemption on confirmation of tax sale where foreclosure was commenced more than two years subsequent to issuance of tax sale certificate. Comp.St.1929, §§ 77-2010, 77-2011.
Wilber S. Aten, of Holdrege, for plaintiff.
A. W Storms and Frank A. Anderson, both of Holdrege, for defendants.
Heard before GOSS, C. J., ROSE, GOOD, DAY, PAINE, and CARTER, JJ and CLEMENTS, District Judge.
Phelps county, plaintiff, brought this action in the supreme court and invoked its original jurisdiction for a declaratory judgment on the time to redeem land from a judicial sale for delinquent taxes in the foreclosure of a tax sale certificate under the facts stated in the petition. Other questions are also presented.
The land involved is lot 7 in block 18, second addition to the town which is now the city of Holdrege, Phelps county. There were delinquent general taxes payable to the county and unpaid special assessments due the city for special benefits for public improvements. The defendants are the city of Holdrege, Nebraska Central Building and Loan Association, Lorenzo A. Franzen and Fred A. Jacobson. November 10, 1932, Phelps county, plaintiff, procured in its favor from the county treasurer a tax sale certificate for $530.14 and on November 5, 1935, purchased the delinquent taxes and assessments levied subsequent to the issuance of the tax sale certificate. Delinquencies amounted to $881.10.
March 17, 1936, more than two years after the tax sale certificate was issued, plaintiff sued to foreclose it in the district court for Phelps county. Foreclosure was ordered May 1, 1936, and under the decree the sheriff sold the realty July 13, 1936, to plaintiff for $149.87. The sale was judicially confirmed September 2, 1936. Execution and delivery of a sheriff's deed followed. November 11, 1936, plaintiff sold the lot to defendants Franzen and Jacobson for $550, subject to the 1936 taxes. December 26, 1936, the city of Holdrege, defendant, assessment lienor, and Ne braska Central Building and Loan Association, defendant, title holder, separately tendered to the clerk of the district court $149.87, interest and costs, for the purpose of redeeming the premises from the tax foreclosure sale. These tenders were refused by the clerk as having been made after the period for redemption expired.
The facts outlined were pleaded in detail for a declaratory judgment and were assailed by demurrers on the ground, among others, that the petition shows on its face the invalidity of the judgment confirming the judicial sale, because it deprived the parties making the tenders of their constitutional and statutory right of redemption within two years from the foreclosure sale.Const. art. 8, § 3; Comp. St.1929, § 77-2041.
The first question upon which the parties invoke the original jurisdiction of the supreme court for a declaratory judgment may be stated as follows: Are owners and others interested in realty, sold under decree foreclosing valid tax sale certificate, where foreclosure was commenced more than two years subsequent to issuance of tax sale certificate, barred from the right of redemption on confirmation of such judicial sale?--a question twice recently decided in the affirmative in other cases. Connely v. Hesselberth (Neb.) 273 N.W. 821; Peterson v. Swanson (Neb.) 274 N.W. 482.
This identical question, according to the pleadings herein, was decided in the former independent action in the district court for Phelps county, from which there was no appeal, the parties having been the same as in the present proceeding. It is not now, therefore, a justiciable issue under the act authorizing declaratory judgments. Comp.St.1929, § 20-21,140. The act does not extend beyond the controversies to which it was intended to apply. An examination of precedents in which its purposes have been...
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