Foster v. Golden Valley Land & Cattle Co.

Philip E. Brown, J. Plaintiff appealed from an order denying him a new trial of a statutory action to determine adverse claims. His right to the realty involved depended upon a tax title based upon a certificate for taxes of 1907. In 1909 the county board failed to legally designate a newspaper-in which to publish the delinquent list as required by P. L. 1905, § 908, whereupon the auditor filed in the office of the clerk of court, with no file marks thereon, an original designation in due form and under his hand and official seal, but filed no certified copy with the-clerk. This auditor’s successor testified, without contradiction, to-his inability to find any original designation or record thereof in his-office after search therein- during the trial, which occurred in March,. 1913. The trial court found, upon the facts and testimony stated, that no auditor’s designation was filed in the auditor’s office, nor any certified copy thereof in the clerk’s office, and held the tax [275] judgment antedating plaintiff’s certificate void for want of jurisdiction. The statute referred to provides that if the board “fail to designate * * * the auditor shall thereupon designate the same in writing, and immediately file such writing in his office, and. a certified copy thereof with” the clerk of court. 1. We will assume that, as contended by plaintiff, the tax certificate is prima facie evidence of the due entry of judgment, that tax judgments are presumed regular and valid to the same extent as judgments in civil actions, and that the filing of the original designation with the clerk was equivalent to filing a certified copy. Om the other hand it must be deemed settled that a designation in substantial compliance with the statute is a jurisdictional prerequisite of a valid judgment, and, to accomplish this end in the present ease,, required the filing of the auditor’s certificate in his office, whichi means the placing and keeping thereof in such office as a permanent record or file. State v. Crosley Park Land Co. 63 Minn. 205, 65 N. W. 268. Furthermore, omissions in this regard may be proved by any competent evidence dehors the record. Brown v. Corbin, 40 Minn. 508, 42 N. W. 481. The question, then, is: Was the evidence sufficient to warrant a finding that such designation was not so filed? Plaintiff contends that it was not, because, (1) the presumptions referred to have not been overcome, (2) defendant’s showing of the auditor’s failure to find an original designation in his-office was generally insufficient to warrant the conclusion that nonesuch had been filed, and specifically insufficient under R. L. 1905, § 800, (3) R. L. 1905, § 914, cured the defect, if there was a failure-to file. We sustain the finding. It may be conceded that the objections indicated would be well taken if we had only the absence of the-original designation from the auditor’s files; hut there is, in addition, its presence in another office' wherein it is not required to be. While-a purported copy suggests an original, one original cannot imply-another where the statute requires no duplication. Public officers; are generally presumed to have performed their duties, but this presumption has not, in this state, been applied rigidly to tax sales; (Sterling v. Urquhart, 88 Minn. 495, 498, 93 N. W. 898), and it [276] cannot avail to supply essential facts (Philbrook v. Smith, 40 Minn. 100, 41 N. W. 545), or the existence of jurisdictional' matters (Howes v. Gillett, 23 Minn. 231). Moreover, even under the general doctrine of performance of official duty, if it be urged that the filing of the designation with the clerk indicates performance, the answer is that this document is not strictly in compliance with the statute. Nor can it be assumed that the court in entering judgment proceeded on any other designation than the one on file in the clerk’s office. Jewett v. Iowa Land Co. 64 Minn. 531, 539, 67 N. W. 639, 58 Am. St. 555; Chadbourne v. Hartz, 93 Minn. 233, 101 N. W. 68. In the ease last cited it was held that where a resolution was found in connection with a tax judgment roll, it would be assumed that it was the only one filed with the clerk by the county auditor. The provisions of R. L. 1905, §§ 800, 914, are unavailing; for ;the former relates to presumptions arising from the mere absence ;from the proper office of papers required to be filed therein, and the ilatter we have held not to cure failure of compliance with the designation statute. Foster v. Gage, 117 Minn. 499, 503, 136 N. W. 299; Foster v. Berg, supra, page 180, 143 N. W. 354. '2. Our conclusion renders discussion of further questions raised -(¡unnecessary. ■Order affirmed.