Dentler v. State

| Ind. | Mar 20, 1837

Blackford, J.

It is stated by the record of this cause, that at the May term of the Marion Circuit Court, 1836, and on the sixth day of the term, the prosecuting attorney filed a list of the lands and lots in the county, on which the taxes for the year 1832 had not been paid. In this list, lot number six in square 51 is described. The school commissioner’s certificate, attached to the list, states—that the list contains a correct description of the lands and town lots on which the taxes unpaid, and that the list was advertised in the Indiana Journal, and by printed advertisements attached to the court-house door in Indianapolis, for four weeks- before the May term of the Circuit Court in 1836.

It is stated that the prosecuting attorney, on the sixth day of that term, made a motion founded on this list of lands and lots, that lot number six mentioned in the list, and there described as the property of a person unknown, should vest in the state.

It is also stated that the Court, being satisfied' that all the proceedings required by law in relation to the lot had taken place, adjudged and decreed that the lot should vest in, the state, for the use of common schools in Marion county.

Since the rendition of that judgment, William Dentler has filed an affidavit stating that the lot belongs to him, and has, as a party injured by the judgment, sued out a writ of error.

The statute of 1832 requires, that the collectors of revenue shall annually deliver to the school commissioners, a description of the lands and lots on which the taxes are unpaid, and that if any of the lands are not redeemed for three years, the same may, to increase the school fund, be sold in such manner as the legislature shall prescribe. Acts of. 1832, page 264. The statute of 1835, in furtherance of that of 1832, directs the manner in which the commissioner must proceed in order to have the title of the unredeemed lands or lots vested in the state. It is required, among other things,- that a list of the lands be advertised, and that the notice thus given express that unless the taxes, &c. be paid before the next term of the Circuit Court, a motion will be made for a judgment that the lands be vested in the state. Acts of 1835, page 37. '

As this is a summary and ex parte proceeding, the greatest strictness on the part of the plaintiff is required. The record must show, that the steps prescribed by the statute to be taken before the motion for judgment is made, have been regularly taken. The record before us is in this respect defective. It does not appear, that the publication contained any notice that the motion for judgment would be made at the next term of the Court. Such a notice should have been inserted in the advertisement of the delinquent-list. The record, it is true, s*atcs that the Court was satisfied that all the proceedings re-quired by law had taken place. But that amounts to nothing. The record must show what those proceedings were, in order that an appelate Court may have an opportunity to determine, whether they are all which the statute requires to give the Circuit Court jurisdiction. “In summary proceedings,” says Chief Justice Marshall, “ where a Court exercises an extraordinary power under a special statute prescribing its course, that course ought to be exactly observed,, and those facts especially which give jurisdiction ought to appear, in order to show that its proceedings are coram judice.” Thatcher v. Powell, 6 Wheat. 119" court="SCOTUS" date_filed="1821-02-12" href="https://app.midpage.ai/document/thatcher-v-powell-85315?utm_source=webapp" opinion_id="85315">6 Wheat. 119.

J. Morrison, for the plaintiff. W. Herod, for the state, Per Curiam.

The judgment is reversed, and the proceedings subsequent to the filing of the delinquent-list set aside. Cause remanded, &c.