Tierney v. Union Lumbering Co.

• Decision Date: 23 September 1879
• Citation: 47 Wis. 248,2 N.W. 289
• Parties: PATRICK TIERNEY, APPELLANT, v. THE UNION LUMBERING CO., IMPLEADED, ETC., RESPONDENT.
• Court: Wisconsin Supreme Court

47 Wis. 248

2 N.W. 289

PATRICK TIERNEY, APPELLANT,

v.THE UNION LUMBERING CO., IMPLEADED, ETC., RESPONDENT.

Supreme Court of Wisconsin.

Filed September 23, 1879.

Appeal from circuit court, Chippewa county.

Arthur Gough, for appellant.

Bingham & Pierce, for respondent.

The plaintiff, the grantee named in the tax-deed, brought this action to foreclose the claim and interest of the defendant, the original owner of the land described in such deed, in such land. The action was brought under section 35, c. 22, Laws 1859. The complaint is in the usual form, containing the averments required by the statute. The deed was executed in 1877, pursuant to a sale of the land in 1874 for the unpaid taxes of 1873. The land is situated in the city of Chippewa Falls.

The answer of the defendant alleges, and the uncontradicted evidence proves, that the assessment of all the property in the ward in which the land in question is situated, for the year 1873, was made on the basis of one-third the actual value of such property; and that the assessment roll of such ward for that year was not verified by the affidavit of the assessor.

No deposit was made with the clerk of the court, pursuant to section 38 of the act of 1859, at the time of filing the answer or at any other time.

The circuit judge directed a verdict for the defendant. The plaintiff moved the court to set the same aside, and grant a new trial on the ground that the verdict was against law and evidence. This appeal is from an order denying such motion.

LYON, J.

The principal question presented by this appeal is: Was the deposit required by section 38, c. 22, Laws 1859, essential to the right of the defendant to interpose the defences stated in the answer? The judgment of this court in Philleo v. Hiles, 42 Wis. 527, resolves this question in the negative. The facts of the two cases are very similar, and the cases are not distinguishable in principle. The defence proposed in Philleo v. Hiles, and the defence proved in this case, go to the very groundwork of the tax proceedings, not upon mere irregularity, and it is settled that to sustain such defence no deposit is or can be required. Nothing can profitably be added to what is said on this subject by the chief justice in Philleo v. Hiles, supra; in Marsh v. The Supervisors of Clarke County, Id. 502; and in Plumer v. The Supervisors of Marathon County, 46 Wis. 163. These cases, and others therein cited, demonstrate the invalidity of assessments made, as was the assessment under consideration, in wilful disregard of the uniform rule of the constitution, and also of assessments not verified by the affidavit of the assessor as required by the statute.

It is claimed that the deposit is required by section 18, c. 8, of the charter of the city of Chippewa Falls. Laws 1873, c. 169, p. 376. But it is clear that no...