State ex rel. Cash v. Scott

Bkace, J. The single question presented for discussion in this case is, whether, in an action on a back-tax bill for delinquent taxes for the year 1876, a recovery [74] can be defeated, it appearing that there was no order entered of record by the county court showing that the delinquent list returned by the collector for that year was examined and corrected by the court, and no order-directing that the list as corrected be certified and filed in the office of the county clerk as required by section. 172 of the revenue law of 1872. Sess. Acts, p. 117. The delinquent list, which is the foundation of the cause of action for back taxes, is not the delinquent list returned by the collector, but that list after it has been examined and compared by the county court and the errors therein, if any, corrected by the best means in their power. ■ This corrected list they are to cause to be certified, and filed in the office of the clerk. It then becomes the foundation for all subsequent proceedings by suit, for -the collection of taxes therein certified to be delinquent. The back-tax book is made from it, from which the back-tax bill is copied and certified by the-collector, on which suit is brought, and which is primafacie evidence of the existence and correctness of such corrected list. This prima-facie case may be overthrown by showing that such a corrected list as the law requires never had legal existence. The court that alone could give it existence is a court of record, and its act can be shown by the record only. The record of that court in this case failed to show that it examined and corrected the delinquent list returned by the collector, or that they made or caused to be certified and filed in the office of the clerk a corrected delinquent list. In other words, the records of the county court failed to show that such a corrected delinquent list had ever been made or ever had an existence. The order made by the court approving the collector’s, settlement and the certificate of the clerk to the delinquent list, if they tended to show anything on tile-subject, tended to show, not that the court examined the list returned by the collector,- corrected it, and ordered [75] it as corrected to be certified and filed, but that the only list that ever was in existence was the one returned by the collector, which uncorrected and without any order of the court, the clerk of Ms own volition certified to be a correct list as returned by the collector. There is nothing to show that the court ever took any action upon the list such as was their duty to take under the section cited. The circuit court held that the prima-facie case made by the back-tax bill was rebutted by the record evidence showing that there was in this case no legal delinquent list on which it could rest, and in this we think committed no error. It is only a certified back-tax' bill, from a legal back-tax book, made from a corrected delinquent list, certified and filed as the law requires by order of the county court, that is “prima-facie evidence that the amount claimed in said suit is just and correct.” R.. S. 1879, secs. 6837, 6826, 6824. The judgment is affirmed.. All concur, except Rat, J., absent.