Reese v. Thurston County
| Decision Date | 17 December 1929 |
| Docket Number | 21828. |
| Citation | 154 Wash. 617,283 P. 170 |
| Parties | REESE et al. v. THURSTON COUNTY et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, Thurston County; John M. Wilson, Judge.
Action by John L. Reese and others against Thurston County, a municipal corporation of the state of Washington, and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
P. L Pendleton, of Tacoma, for appellants.
W. J Milroy and Roscoe R. Fullerton, both of Olympia, for respondents.
This action is to set aside a tax foreclosure and sale in so far as they affected the property of appellants as the owners of 320 acres of land situated in Thurston county, described in the complaint.
Appellants had failed, for a period of five years prior to 1927, to pay the taxes assessed against the lands described in the complaint, and the treasurer of Thurston county included the same in the general certificate of delinquency issued by the treasurer to the county under date of June 1, 1927. Following the issuance of the certificate the treasurer, with the assistance of the county attorney, prepared a summons in foreclosure directed to those persons whose names appeared upon the tax rolls as owners of the property issued in the certificate of delinquency. The name John L. Reese and also J. L. Reese appear in the summons. The property of appellants is described in the body of the summons wherein it is also stated that the taxes are assessed to John L. Reese or J. L Reese and C. Lutken. The summons shows that on the treasurer's books the description of the land, the name of the owner, and the amount of the tax appear.
The original summons was subscribed by the county treasurer and by a deputy prosecuting attorney of the county and published in the Tenino Independent, which the court found to have been the county official newspaper, and a legal newspaper, during the time of the publication. The court also found that publication commenced on August 26, 1927, and continued on September 2, September 9, September 16, September 23 September 30, and October 7, 1927.
At the time publication was commenced the general certificate of delinquency had not been filed with the clerk of the superior court of Thurston county. The court found that on October 11, 1927, four days after the date of the last publication, the treasurer filed with the county clerk the original delinquent tax certificate.
Pursuant to a hearing thereon, the decree of foreclosure was entered, the treasurer posted notices of sale as required by the statute, and the sale was set for November 5, 1927. The decree of foreclosure was not filed in the office of the clerk of the court until November 4, 1927, one day before the sale.
At the time the treasurer proclaimed the sale at the front door of the courthouse he had in his possession a certified copy of the decree of foreclosure.
Respondent Hayes purchased the 320 acres in controversy and obtained the treasurer's deed thereto.
Prior to instituting this action, appellants tendered to Hayes the amount expended by him in purchasing the property, together with interest. The tender was refused. The tender was continued in court at the trial. It is not disputed, nor its sufficiency questioned.
After the hearing and proofs of the above facts, the trial court made findings in accordance therewith and refused findings proposed by appellants and conclusions of law based thereon, to the effect that appellants were entitled to a judgment setting aside the foreclosure and sale and permitting the payment of the back taxes, interest, and costs.
Appellants' errors are all based upon the findings and conclusions so made, and refused, and the judgment rendered thereon.
The first contention of appellants raises a question of jurisdiction to the effect that the court never acquired jurisdiction in the foreclosure proceedings because the original certificate of delinquency was not filed in the office of the clerk of the superior court until about 46 days after the commencement of publication of the summons.
Appellants found their contention upon certain statutory provisions relating to the foreclosure of tax certificates; among other things, a part of section 11097-115, Rem. 1927 Supp. being a part of the act of 1925 relating to such foreclosure of delinquent tax liens. That section in part reads: '* * * The notice and summons shall be served in the same manner as a summons in a civil action is served in the superior court.'
Rem. Comp. Stat. §§ 220-233 are then referred to respecting publication of summons in civil actions; section 233, in part, reading: '* * * Provided that publication of summons shall not be had until after the filing of the complaint. * * *'
Appellants therefore argue that, since the first publication of summons was on August 26, 1927, the certificate of delinquency not having been filed in the office of the clerk until October 12, 1927, no jurisdiction could possibly attach until October 12, 1927; that therefore the proceedings were more than irregular, they were void.
The law governing the procedure upon foreclosing certificates of delinquency issued to the county is set forth in Rem. 1927 Supp. § 11097-117. That statute, after authorizing the treasurer to issue certificates of delinquency, directs that the treasurer '* * * shall file said certificates when completed with the clerk of the court, * * * shall thereupon, * * * proceed to foreclose in the name of the county, the tax liens embraced in such certificates, and the same proceedings shall be had as when held by an individual: Provided, that notice and summons may be served or notice given exclusively by publication in one general notice, describing the property as the same is described on the tax-rolls.' The statute relating to such foreclosures is the same now as it was in 1901. Laws 1901, p. 385, § 3.
The same question now presented was before us in Miller v. Henderson, 50 Wash, 200, 96 P. 1052.
In that case an examination of the record shows that the complaint to set aside the tax foreclosure and sale, among other things, alleged:
That the judgment of foreclosure entered in the cause on December 18, 1901, was null and void and of no effect for the reason that the court rendering the same never acquired any jurisdiction of either the persons or the subject-matter of the action; that the...
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State ex rel. Mulhausen v. Superior Court for Thurston County
...... followed in assessment and collection, the requirements of. the due process clause of the constitution are satisfied. 1. Cooley on Taxation, 4th Ed., p. 329, § 143; 3 Cooley on. Taxation, 4th Ed., p. 2263, [22 Wn.2d 818] § 1118, p. 2264, §. 1119; Reese v. Thurston County, 154 Wash. 617, 283. P. 170; Miller v. Henderson, supra; Scottish Union & National. Ins. Co. v. Bowland, supra; Palmer v. McMahon, 133. U.S. 660, 10 S.Ct. 324, 33 L.Ed. 772; McMillen v. Anderson, 95 U.S. 37, 23 L.Ed. 335. In the case last. ......
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...no such language in the statute of that state, the proceedings have more than once been declared to be in rem. Reese v. Thurston County, 154 Wash. 617, 623, 283 P. 170 (1929); Washington Timber, etc., Co. v. Smith, 34 Wash. 625, 76 P. 267 (1904). In the latter case the court "The difficulti......
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