Emmons County v. Thompson

Wallin, J. The order appealed from bears date December 5, 1899, and in terms vacates and sets aside a certain tax judgment, and a tax sale made thereunder, and allows the owner of the tract of land involved to hie an answer to the complaint in the action. The land involved is situated in Emmons county, and belongs to one Hiram R. Thompson, and is described as follows: The S. W. jj- of section 22, in township 135, of range 73. The order of the District Court was based wholly upon an affidavit made by one Plenry A. Armstrong, and the order contains the following recital: “It appearing to the court that the allegations and material statements set forth in the affidavit of Henry- A. Armstrong therein are true, and that the judgment rendered,.and the sale made thereunder, are null and void,” etc. Then follows the order vacating and setting aside the judgment and sale, and allowing the owner to file an answer. The judgment referred to in the order is a certain tax judgment against the land above described, which was entered on the 14th day of October, 1897, and the tax sale thereunder was made on December 6; 1897. The judgment was entered and sale made under the provisions of chapter 67 of the Laws of 1897, authorizing the District Court, under conditions named in said chapter, to enter judgments against lands for taxes thereon which became delinquent in 1895 and prior years. The record shows that no counter affidavits were filed in the District Court, and, so far as appears, none of the records in the tax case was offered in evidence before the District Court at the hearing which culminated in the order in question. We are therefore confined, in passing upon the case, to the averments embraced in said' affidavit of Henry A. Armstrong. In our judgment, the case can properly be disposed of on its merits, without quoting said affidavit in full, nor shall we do more than set out the substance of such allegations therein as are deemed pertinent to the'controlling questions which are presented for determination. By the terms of said order, the District Court lias wholly vacated and set aside said tax judgment and sale, and it appears that this was done because, in the opinion of that court, said judgment was not merely irregular, but was “null and void.” This is, of course, tantamount to a declaration that the court in entering said tax judgment was without jurisdiction to enter the same, for the reason that a judgment entered by a court of competent jurisdiction, and which is intelligible in its terms, is not, and cannot be, absolutely “null and void.” The affidavit upon which the order was based also declares, in terms, as follows: “Affiant further states and alleges that the said judgment so entered as aforesaid was and is void for the following reasons, to-wit,” etc. We call particular attention to the terms of the affidavit and the — 602 — order, for the purpose of showing that neither the court below nor counsel for the moving party regarded the application as one made to the favor of the District Court, or as one based upon a mere irregularity of procedure. The application, on the contrary, was made and granted expressly upon the theory and ground that the judgment was void, and we shall therefore so treat the case in this court. But, in confining ourselves to the one matter of jurisdiction, we do not desire to suggest that this particular judgment was or is vulnerable to attack upon any ground of mere irregularity in entering the same. Irregularities in entering judgments may be cured if properly and seasonably pointed out to1 the court in which they occurred, but the right to do so is often lost by the lapse of time, by laches, and other causes. Nor do we discover in this record any evidence that the judgment in question was irregularly entered. It was a default judgment, and was entered upon all the evidence which is ever introduced, or can lawfully be introduced, in any case of default arising under the act of 1897. The evidence consisted of the verified delinquent tax list required to be filed by the county treasurer in the office of the clerk of the District Court. By the terms of the statute, the filing of such list not only operates to commence an action against the land to recover a judgment for taxes, but also to give notice of the pendency of such action to' all parties interested in the land; and, by its express language, the list so filed is further made prima facie evidence that all the provisions of the law in relation to the assessment and levy of the taxes referred to in, the list, which were in force when the same were assessed and levied, “have been complied with.” This evidence was before the District Court when the tax judgment in question was entered, and no rebutting evidence being offered, and no objection being made to the entry of the judgment, we are unable to see wherein the judgment was erroneously entered or was in any respect irregular. True, the affidavit on which the District Court based its order vacating the judgment sets out facts which tend strongly, and perhaps conclusively, to show that the taxes, as shown by the delinquent list, were never lawfully assessed, equalized, or levied, and we may assume, for the purposes of this decision, that many of the taxes, if not all, for which said judgment was entered, were voidable by reason of fundamental defects in the tax proceedings upon which the same were based. But this concession in no wise militates against the regularity of the tax judgments. None of the alleged defects in the taxes were pleaded by answer or otherwise brought to the attention of the court entering the judgment, and we have seen that there was competent evidence that the taxes were lawfully assessed and levied. The owner, who was a nonresident, received the same notice which any owner, whether resident or nonresident, ever can receive in such an action. The statute makes the filing of the list constructive notice of the pendency of the action to all parties interested in the land, and jurisdiction of the res is acquired by — 603 — publishing the delinquent list, which embraces a description of the lands involved. The action is strictly in rem, and, as it is instituted as a mode of collecting taxes by means of judicial proceedings, a personal notice would be impracticable, and, under the authorities, such notice may be dispensed with entirely in such proceedings. Nor is personal notice required in actions in rem which do-not relate to the collection of the public revenue. The law in its entire scope proceeds upon the theory that in many cases no actual notice of the pendency of the action to recover the tax judgment against the land will be received by the owner of the land, and it is entirely elementary that actual notice is not essential, and that statutory notice alone will confer jurisdiction to enter the judgment. To sustain this proposition, the case of Dousman v. City of St. Paul, 23 Minn. 394, is in point. But the motion, if regarded as either an appeal to the favor, or an application to vacate a judgment for a mere irregularity, could not, in, any court, have been lawfully granted, for the reason that the motion to vacate was not based upon either air affidavit of merits or upon a proposed verified answer. See Sargent v. Kindred, 5 N. D. 8, 63 N. W. Rep. 151; Kirschner v. Kirschner, 7 N. D. 291, 75 N. W. Rep. 252; Railroad Co. v. Blackmar, 44 Minn. 514, 47 N. W. Rep. 172. Turning to the matter of jurisdiction, we have carefully read and considered the affidavit upon which the order vacating the judgment is based. With certain exceptions hereafter to be considered, it embraces allegations showing, or tending to- show ,that the taxes for which said judgment was entered were illegal and voidable by reason of certain fundamental defects in the tax proceedings. We have, however, already said that none of the alleged defects in the tax proceedings were brought to the attention of the trial court at any time prior to the entry of the judgment; and it is abundantly established by judicial opinion that the jurisdiction of the District Court to- enter a judgment for such taxes would nq£ have been ousted, or in any wise affected, if any and all such defects had been pleaded by way of answer and defense in the action in which the judgment was entered. A total failure to- assess or levy a tax would be a good defense, if set up by answer and proven at the trial. In such a case, the court would refuse to enter a judgment because in the supposed case the plaintiff, on issue joined, would fail to make out a case. But no question of jurisdiction arises upon sttch an issue. See In re St. Paul D. R. Co. (Minn.) 6 N. W. Rep. 454; Chauncey v. Wass (Minn.) 30 N. W. Rep. 826; Wallace v. Brown, 22 Ark. 118; State v. Sargent, 12 Mo. App. 228; Gage v. Parker, 103, Ill. 528. But the affidavit presented to the District Court, after stating that said tax judgment was entered by default against said land by the clerk of the District Court of Emmons county, proceeds as follows: '‘That, at the time of the rendition of said judgment by said clerk as aforesaid, the said clerk was not the judge of any court, and did not enter said judgment agreeably to the order — 604 — of any court or judge of any court; * * * that said judgment, as affiant believes, is void upon its face, because it shows that it was not rendered by any judge, court or judicial officer.” The judgment was entered pursuant to section ,6, chapter 67, Laws 1897, which declares: “Upon the expiration of thirty days from the last publication of such notice and list the said clerk shall, the affidavit of publication being hied, enter judgment against each and every one of such pieces or parcels as to which no answer shall have been filed, which judgment shall include all of such pieces or parcels.” We are of the opinion that the contention of counsel to the effect that this judgment was not entered by the court, for the reason that the clerk who entered it in the judgment book was not in terms directed to enter the same, either by the District Court or a judge, thereof, is untenable. The contention goes to the constitutionality of the statute under which the judgment was entered. This action was strictly in rem, and in such cases actual notice to individuals interested in the res is never indispensable. See Emmons County v. Lands of First Nat. Bank of Bismarck (decided at this term) 84 N. W. Rep. 379. Under chapter 67b, the law declares that the only notice to individuals interested in the land of the pendency of the action is given by filing a verified delinquent list with the clerk of the District Court. The act of filing operates as constructive notice to the land-owner, and also to commence an action in rem against the land itself. The publication of the delinquent list, under the statute, is all that is needed to give the District Court Jurisdiction over the land for the purposes of hearing the case and entering a judgment against the land for the amount of the taxes against each tract, as the same are stated on the verified list. No judgment in personam can be entered under the act. True ,the court cannot enter any judgment without proof that the taxes appearing upon the list are valid taxes, and, if the proof offered by a landowner who voluntarily appears shows that a tax is void, the court would err if it entered judgment for the same. In the case at bar, however, no appearance was made, and no answer alleging a defense was filed. The case being strictly a default case, the evidence, consisting of the verified delinquent list, was all the evidence required in behalf of" the plaintiff, and the same was sufficient, under the statute, to establish prima facie the validity of the tax against the land in question. Had the court or judge assumed to direct the entry of the judgment, but one direction was possible or could lawfully have been given upon the evidence in the case. The law and the evidence together required the entry of a judgment for the plaintiff, and the order of a court or judge must necessarily have conformed to the mandate of the statute, and hence the court would be powerless to do more than direct the entry of the judgment which was entered. In such a case a direction to enter would be an idle form, and purely perfunctory, nor would the same possess any element of actual deliberation. The statute has dispensed with any such useless formality — 605 — by directing the clerk to enter judgment for the taxes on the delinquent list in all cases of default for answer. In doing so, the law assumes that all parties interested in the land, having had the requisite statutory notice, have assented to' the entry of judgment against the land for taxes against it appearing on the delinquent list. The judgment, therefore, in this class of cases, is in legal fheory a judgment entered by consent, and in such cases a judgment may be entered without an order of court, except in cases where the statute requires such an order. In this state no such order is required in actions arising under chapter 67, supra, and a contrary rule is plainly implied by the provisions of section 9 of the chapter. Chapter 67 is very nearly an exact transcript of a statute of the state of Minnesota, in which state judicial power is not vested in clerks of court, but is vested by the constitution of the state in certain judicial officers corresponding in name and authority to those in, this state. The statute has been before the Supreme Court of Minnesota for construction and been construed by that court in many cases, and in no case has the power of the clerk to enter a default judgment been questioned. In our opinion, it is clear that the clerk, in entering a judgment by default under chapter 67, acts ministerially only, and that his power to do so, therefore, cannot be questioned on constitutional grounds. Only one further point is presented by the affidavit which at all bears upon the jurisdiction of the court to enter the judgment. It appears by the affidavit that the delinquent list was published the requisite number of times in the Emmons County Gazette prior to the entry of judgment, but the affidavit in this connection charges that three copies of each number of the newspaper were not “filed or caused to be filed with the clerk of said court by the publisher of said newspaper, or by any other person, as required by law, or at all. Section 4, chapter 67, supra, provides that “the owner, publisher, manager or foreman in the printing office of the newspaper in which such notice .and list shall be published shall make and file with the clerk of the District Court an affidavit of such publication, stating the day in which each publication was made, and shall also file with the clerk three copies of each number of the paper in which the notice and list shall have been published.” There is no averment and no claim that the affidavif of publication required was not duly filed, and the question is presented whether the omission to file the requisite number of copies of the newspaper is fatal. We are clear that it is not. The jurisdiction over the land was acquired by the fact of publication, and not by any proof of that fact. The proof of publication in this case, viz: the affidavit, was duly filed, but, if it had not been, the proof could have been supplied at any time during the pendency of the action. The cases next below cited are directly in point, as supporting our views upon this feature of the case. Hoyt v. Clark (Minn.) 66 N. W. Rep. 262; Frisk v. Reigleman (Wis.) 43 N. W. Rep. 1117; Fruit Exchange v. Stamm — 606 — (N. M.) 54 Pac. Rep. 345; Commissioners v. Morrison, 22 Minn. 179. We shall therefore necessarily hold, upon the facts appearing upon "this record and under the law applicable thereto, that the District Court erred in 'making the order appealed from, for the reasons and upon the grounds already stated; and, in so far as the order assumes to deal with and vacate the tax sale made under the tax judgment in question, the order is entirely erroneous upon said grounds and reasons, and for the additional reason that there is nothing in this record tending to show that after said judgment was entered, and before the sale, said judgment was satisfieu in whole or in paid. See, on this point, section 15 of chapter 67. The order appealed from is in all things reversed, and the District Court is directed to enter an order reversing the same, and also enter an order denying the application made herein to vacate said judgment and tax sale, with costs of both courts to appellant. All the judges concurring.