22 S.D. 521 | S.D. | 1908
This cause comes before us on appeal- from an order of the circuit court of Meade county, Judge Washabaugh presiding, vacating the findings of fact, conclusions of law, and judgment which h/ad been entered and rendered in said cause by Judge Moore, the predecessor of Judge Washabaugh.
The facts shown by the record are as follows: The plaintiffs herein brought this .action against the defendants Twitchell and Polk for the purpose of having a certain (tax certificate which these defendants claimed to hold agpinst certain lands, the title of which was claimed by the plaintiffs, declared invalid, and to- have their title quieted as against these defendants. They made defendant Shaw a party hereto simply for the reason that he was the treasurer of Meade county, and they -sought to restrain any issuing of tax deed by said defendant fShaw to either of the other defendants. The complaint sets forth that the defendants Twitchell and Polk either one or both of them claimed to- have purchased of said Meade county certain certificates on tax sales which sales were made to said county. The plaintiffs allege that there had been no-proper assignment of -said certificates; also, that the defendants Twitchell and Polk had not purchased said certificates of the county, but had -paid in the money to the treasurer for the purpose of paying the taxes represented by said certificates, and, further, the plaintiffs .allege that, owing to- the relations existing between the plaintiffs and the defendants Twitchell and Polk, the duties and obligations which said two defendants owed to these plaintiffs, it was the legal duty of said defendants to pay said taxes, and that they could not legally acquire a lien against such land under such tax certificates. They further allege that, before purchasing the land in question, they had obtained from the defendant Shaw a certificate to the effect that all taxes against these particular tracts of land had been paid, and that they had relied upon the same in purchasing the land. There were other allegations that are immaterial for the purpose of this hearing.
In the first paragraph they set forth that the ¡findings, conclusions, and judgment were not made and entered until 18 months after the trial, and that defendant Polk had acquired an 'interest through his tax deed subsequent to the trial of this cause and prior to the date of said findings, conclusions, and judgment, and that, insomuch as said findings, conclusions, and judgment were entered as of January, 1902, and make no reference to' the date when said trial was had, such findings, conclusions and judgment upon their face set aside and render said tax deed void. As regards this contention, we would say that there is no merit in respondents’ position. This court has heretofore held that the statute requiring decisions to be filed within 30 days after submission of cause is directory, and that a failure to file the same within that time will not affect the judgment. Edmonds v. Riley, 15 S. D. 470, 90 N. W. 139; Roblin v. Palmer et al., 9 S. D. 36, 67 N. W. 949. As to the question of this judgment apparently vacating and avoiding said tax deed on account of its not stating the time of trial, we would say that a mere amendment of -such findings and judgment showing the time of trial would have cured all cause for complaint, and certainly it wjould be highly improper for a court, even if it had the jurisdiction to do so, to set aside and vacate findings and conclusions as well as judgment, when by so doing a new trial of the issues involved would become necessary where there was this simple remed)’- by amendment. We think it can hardly be 'questioned but
The second ground set up was that n,o proceedings had ever been had to set aside said tax deeds, and the same were valid1 and so appeared except for the cloud cast upon the title by the judgment, and that said tax deeds were never in issue in the above cause in which the judgment was rendered. What we have said above we think fully answers this, but, in addition, we might add that under no circumstances should the respondents have been heard to ask relief in aid of their tax deed when such deed was taken while they knew an injunction was put in the cause at bar restraining the issuance of such a deed and they had not brought in the plaintiffs in this cause as parties to said mandamus action. It would seem that, if any one was guilty of wrong practice, it was the respondents.
The third ground set forth was that these findings, conclusions and judgment were entered as of default against the defendant Twitchcll, and that as a matter of fact such defendant had never been served with process and had (never appeared either by answer or demurrer. There is nothing in this contention, as we have shown by the facts herein, as the records .show that this defendant had appeared through attorneys upon a motion to vacate the injunction and in an affidavit filed in connection therein had designated himself as a defendant herein, and, furthermore, he is not the party for whose benefit it was sought to open up the findings, conclusions, and judgment.
The fourth contention i;s similar to the first and second, and fairly covered by wl>at we have said in relation thereto; and this is also true of their fifth ground or paragraph.
All of the reasons for vacating judgment set forth in the lower court could be disposed of upon the one ground, to wit, admitting
From the above it appears to the court that the resppndents, if they have been injured by the making and entry of these findings, conclusions, and Judgment in the form in which the same were made and entered, have sought the wrong remedy, and that Judge Washabaugh had no jurisdiction to vacate staid findings, conclusions, and judgment on any ground asked for by the respondents.
It is therefore the order of this court that the order of ,said circuit court vacating such findings, conclusions, and judgment be reversed and set aside, and thiat the circuit court be required to reinstate said findings, conclusions, and judgment.