Powell v. Finn

Gilkeson, P. J. The questions raised by the plaintiff in error in his brief are very numerous. Most of £hem, however, are questions of practice, and as to these latter we will say that the court erred in setting aside any part or portion of the decision and judgment first rendered in this case, as the objections to it were not properly presented under the requirements of the Code, or, if they were, were clearly out of time ; but we do not think that the plaintiff below was prejudiced thereby, as the error did not affect the judgment finally rendered — that which could and should have been rendered, even if the court had refused to set aside any of the proceedings. Besides, some of the gross irregularities occurring upon the trial of this case were assented to, or at least submitted to, without exceptions being taken at the time. The question of the Statute of Limitations was not raised in the court below. The tax deed was'attacked for irregularities, and, as the court held it void, the plaintiff obtained all he asked and cannot complain. The next proposition presented is, that it was error for the court to allow the defendant a lien for any taxes. This contention cannot be sustained. We think this case falls within the spirit and letter of paragraph'6996, General Statutes of 1889, as amended by section 6, chapter 110, Laws of 1893. Under this paragraph the court should have adjudicated the claim for taxes. The record shows that it was adjudicated by consent; at least, issue was joined thereon and a hearing had without objection. This having been done, it was proper under the testimony to allow the am bunt of the claim, and it became a lien upon the premises. We think this view is fully sustained by our Supreme Court in Russell v. Hudson, 28 Kan. [498] 99 ; Coonradt v. Myers, 31 id. 30 ; Belz v. Bird, 31 id. 139 ; Bird v. Belz, 33 id. 391; Jackson v. Challiss, 41 id. 247. The judgment of the court below will be affirmed.