Newton v. Auditor General

Grant, J. (after stating the facts). 1. The sale was made pursuant to the decree of this court, which was definite as to dates and amounts. The items and the amount of the taxes were specifically stated and entered in the tax record, which was held valid. All that remained for the officer to do in making the sale was to add interest upon the “Aggregate,” which appeared under the heading “13.” The order of the circuit court is a virtual annulment of the decree of this court. The objection made against the sale is purely technical, and has no merit. The circuit court should have issued the writ of assistance. Morgan v. Tweddle, 119 Mich. 350 (78 N. W. 121), and First Baptist Church of Bay City v. Roberts, 130 Mich. 704 (79 N. W. 910), do not apply. Those cases involve that provision of section 66 of the general tax law (1 Comp. Laws, § 3889) which requires the register of the circuit court to enter opposite each parcel of land, under the heading ‘ ‘Amount Decreed against Lands,” the total amount of the taxes held 'to be valid. That provision does not apply to sales under decrees in this court. 3. It is urged that the order of the court in denying the writ of assistance and holding the sale void is reviewable [550] only upon appeal. That may be the rule as between the relator and the original owner of the land, who were the sole parties to the writ of. assistance, but it does not apply to the auditor general. He was not made a party to it, and is entitled to his day in court, which he did not have until the relator commenced these proceedings. The relator was the only one adversely affected by the order denying the writ. He alone had the power to appeal, but chose to rest content with the order. If he desired to bind the auditor general by that proceeding, he should have made him a party. The writ is denied, with costs. Hooker, C. J., Moore and Montgomery, JJ., concurred.