Comstock Phoenix Mining Co. v. Lazzeri, 36 P.2d 360

Comstock Phoenix Mining Co. v. Lazzeri

36 P.2d 360 | Nev. | 1934

Lead Opinion

A tax deed is void on its face if it does not show that parcels which were or should have been separately *422 assessed were sold separately. 61 C.J. 1348; Lindeman v. Pinson,54 Mont. 466, 171 P. 271; Sires v. Parriot, 106 Okla. 244,233 P. 748; Kit Carson Land Co. v. Rosenberry (Okla.), 122 P. 72; Inman v. White (Colo.), 122 P. 65; Colver v. Miller (Kan.), 272 P. 106; Manker v. Peck (Kan.), 81 P. 171; Elerick v. Reed (Okla.),240 P. 1045; Eldridge v. Robertson (Okla.), 12 P. 156. Papers not mentioned in sec. 8829, N.C.L., cannot be made part of the judgment roll. Joudas v. Squire, 50 Nev. 42, 44,249 P. 1068. It is certainly evident that these papers have not been incorporated in a bill of exceptions, for the reason that they have not been settled and allowed by the court, judge or stipulation of the parties, in conformity to sec 9398, N.C.L., and therefore must be stricken. Caldwell v. Wedekind Mines Co.,50 Nev. 366, 261 P. 652; Shirk v. Palmer, 48 Nev. 451,236 P. 678.

Since these papers are not part of the judgment roll or a part of a bill of exceptions they must be stricken. Markwell v. Gray,50 Nev. 427, 265 P. 705.

The motion to strike volume No. 2 of the record on appeal is made upon the ground that it had not been filed with the clerk of the district court within the time allowed by statute (sec. 9398 N.C.L.), and the statutory time had not been extended by stipulation of the parties or by court order. It should therefore be stricken. Markwell v. Gray, supra; Bowers v. Charleston Hill Nat. Mines Co., 50 Nev. 99, 251 P. 721.

Respondents maintain that the tax deed is not void upon its face. "All such deeds, whether heretofore or hereafter issued, are primary evidence * * * that at a proper time and place the property was sold as prescribed by law, and by the proper officer; * * * sec. 6449, N.C.L.

The foregoing statute has the effect of placing upon the appellant the burden of proof of showing that the *423 deed is void or that the property was not sold as prescribed by law. Since the trial court found that the sale was in accordance with the law, it must be presumed that at the trial appellant did not succeed in overcoming the primary evidence, the deed itself.

OPINION This is an action to annul a tax deed. Judgment was rendered in favor of the defendant. Plaintiff appealed from the judgment and the order denying its motion for a new trial.

In this court defendant moved to strike the transcript of the testimony, filed in lieu of a bill of exceptions, for the reason it was filed too late, and certain papers attached to the judgment roll and certified to as correct copies by the clerk of the court.

Counsel for plaintiff did not resist the motion to strike the transcript of the testimony, but did resist the motion to strike certain papers attached to the judgment roll and certified to by the clerk.

1, 2. Tendered bills of exceptions not filed within the time allowed by statute (section 9398, N.C.L.) will be stricken on motion, Johnson v. Johnson, 54 Nev. 433, 22 P.2d 128; and the other documents not embraced in the judgment roll must also be stricken, Brockman v. Ullom, 52 Nev. 263, 285 P. 485. The motion to strike must be granted. This leaves nothing for our consideration but the judgment roll.

3. Appellant contends that the deed in question, which is pleaded by plaintiff, fails to show a compliance with the statutory requirement relative to tax sales, and is therefore void.

We cannot agree with this contention. Section 6449, N.C.L., expressly provides that a tax deed which recites substantially the matters contained in the treasurer's certificate of sale shall be prima facie evidence that the property was assessed as required by *424 law; that the taxes were levied in accordance with law; that at a proper time and place the property was sold as prescribed by law and by the proper officer; that the property was not redeemed; that the person who executed the deed was the proper officer; that when real estate is sold to pay taxes on personal property, the real estate belonged to the person liable to pay the tax. The deed, by its terms, is limited to "the following described land," though it enumerates some property which may, or may not, be fixtures, as to which we cannot determine in this proceeding.

The deed being prima facie evidence of a compliance with the statutory requirements, and there being no evidence before us, we must necessarily affirm the judgment.

It is so ordered.

ON PETITION FOR REHEARING November 21, 1934.

Addendum

Rehearing denied. *425