110 Minn. 405 | Minn. | 1910
This proceeding was instituted in the district court of the eoúnty of Meeker to enforce delinquent taxes against tbe land of tbe respondents for tbe year 1907 and a special lien or assessment against tbe land for tbe construction of a county ditcb designated as “No. 17.” Tbe respondents by their answer made no objections to tbe general tax, thereby conceding its validity and tbe right of tbe appellant to judgment therefor. The defense was directed solely to tbe special lien or assessment for tbe ditcb, and was to tbe effect that tbe board of county commissioners never acquired jurisdiction to establish tbe ditch, and, further, that no assessment list and statement, signed and acknowledged by the county auditor, including tbe land of tbe respondents, was ever recorded in tbe office of tbe register of deeds. Tbe findings of fact by tbe trial court were to tbe effect that, although there were irregularities and defects in tbe proceedings taken to establish ditcb No. 17, they were such as could be and were waived by tbe respondents, and that they were now estopped to question tbe validity óf tbe order establishing tbe ditcb, which “is a valid, established and existing public improvement within said county;” and, further, that no proper or sufficient assessment list and statement which included tbe respondents’ land was ever made by tbe county auditor and recorded in tbe office of tbe register of deeds- of tbe proper county, as required by Laws 1901, p. 425, c. 258, § 19. Tbe conclusions of law from tbe findings of fact were these: “That tbe plaintiff is not entitled to recover, in tbis proceeding, any amount of tbe asserted lien for tbe cost of ditcb No. 17 of said county, but is entitled to judgment covering tbe amount of tbe general. tax against tbe lands described above, with interest, penalty, and costs. That the defendant and objectors are entitled to judgment of dismissal of tbis action and proceedings as to tbe entire amount of principal, interest, penalty, and costs asserted and claimed for a ditch lien against or upon said lands. Let judgment be entered accordingly.” Thereupon, on motion of counsel for appellant, judgment .was entered by the clerk to tbe effect that ditcb No. 17 is a valid established and existing public improvement; that tbe plaintiff is not entitled to 'recover in tbis
The only question. presented by the record for our decision is whether the ultimate facts found by the court justify its conclusion of law that judgment be entered dismissing the action as to the alleged ditch lien assessment. It is the contention of the appellant that they do not, for the reason that the record presents simply a failure of proof on the part of the appellant; hence only a nonsuit was proper. The record does not sustain the contention.
The proceeding was one to enforce the payment of a general tax, as to which there was no issue, and to enforce the collection of a ditch lien, as to which the issue was whether such lien existed. This issue was tried on the merits, and the court found, from the evidence submitted, facts from which the conclusion necessarily followed that there was not and never had been any such ditch lien. This was not a mere failure of proof on the part of the appellant, for the delinquent list filed with the clerk of the court established a prima facie case for the appellant which was overthrown by evidence that no assessment list and statement was ever recorded in the office of the register of deeds. The recording of such list in the register’s office is essential to the creation of a valid ditch lien. Laws .1901, p. 425, c. 258, §§ 18, 19.
It follows that the issue was tried and determined on the merits, and that a mere nonsuit, leaving the appellant at liberty to institute another proceeding to enforce the collection of the same alleged lien, would be manifestly unfair. The facts found show that there never was any ditch lien; hence they clearly justify the conclusion that the proceedings, so far as they relate to the’alleged ditch lien, should be dismissed. This contention rests upon the simple proposition
Judgment affirmed.