Smith v. Kipp

Dickinson, J. The defendants appealed to this court from an order refusing a new trial. The action was prosecuted to determine .the validity of a tax title which'the defendants claim to have ac- . quired by a sale tp them of the lands in question at a tax sale of forfeited lands in 1881, (under chapter 135, Laws 1881,) pursuant to a judgment for taxes which became delinquent in the year 1879 and prior years. The court, having heard the cause, made specific findings of fact, .upon which, it was considered and found that the tax judgment and [124] the certificate of sale were void. The argument on this appeal is of wider scope than is justified by the assignments of error. In the' brief and argument of the appellants it is claimed that some of the findings of fact are erroneous. But the assignments do not point to any such errors. Buie 9, as amended in 1885, requires specifications of error, and, “when the error'specified is that any finding of fact of the court below or a referee is not sustained by evidence, it shall specify particularly the finding complained of. No error not affecting the jurisdiction over the subject-matter will be considered, unless stated in the assignment of errors.” The assignments of error amount to no more than this: (1) That “the decision was not justified by the evidence, and is contrary to.law, in this: that the evidence shows the defendants to be the owners of the property” by virtue of the tax sale specifically referred to; and (2) “that more than nine months elapsed between the sale of the property and the bringing of this action.” This first and general assignment of error is insufficient to call in question the correctness of any one or more of several specific findings of fact. Hence the facts particularly found are to be taken as true. No error being assigned in respect to them, it is of no avail to allege that the general conclusion of fact resulting therefrom is not justified by the evidence. Again,’ in one particular Qk least, as to which the court expressed no finding, (as to the designation of a newspaper, by the county auditor, for the publishing of the tax list, and as to the filing of a certificate thereof in the clerk’s office,) we are, in effect, asked to determine from the evidence what the fact was, and to give effect to such determination as though it had been found by the trial court. There was no application to the trial court for findings upon this subject. It is not our province to determine, in the first instance, and from the evidence presented in another court, the facts of a case. We must take the facts of the case to be as they have been established by the findings of the trial court, except that, upon a proper assignment of error, we may review the same, and determine whether they were justified by the evidence. Warner v. Foote, 40 Minn. 176; (41 N. W. Rep. 935;) Williams v. Schembri, 44 Minn. 250, (46 N. [125] W. Rep. 403;) Jordan v. Secombe, 33 Minn. 220, 222, (22 N. W. Rep. 383;) Miller v. Chatterton, 46 Minn. 338, 342, (48 N. W. Rep. 1109.) (Opinion published 51 N. W. Rep. 656.) The findings of fact made by the trial court justified the conclusion that the tax judgment and the certificate of sale-were váid. It is enough that the delinquent list, as published, was “so inaccurate and incomplete that the aforesaid premises supposed to be described therein * * * are not in fact described therein at all, so as to be ascertainable therefrom without reference to.the original list.” The publication of a tax list and notice thus defective would be ineffectual to give to the court jurisdiction, the judgment rendered thereon would be void, and the statute of limitations would be inapplicable. Feller v. Clark, 36 Minn. 338, (31 N. W. Rep. 175;) Kipp v. Fernhold, 37 Minn. 132, (33 N. W. Rep. 697;) Sanborn v. Cooper, 31 Minn. 307, (17 N. W. Rep. 856;) and see Farnham v. Jones, 32 Minn. 7, (19 N. W. Rep. 83,) and Vanderlinde v. Canfield, 40 Minn. 541, 543, (42 N. W. Rep. 538.) It follows that, from the facts found, the court was right in its conclusion that the tax title relied upon was invalid. Order affirmed.