52 P. 471 | Ariz. | 1898
1. 'This was an action brought by Frank H. Hereford, appellant herein, and plaintiff in the district court, against E. A. O’Connor, appellee, to quiet title to an undivided one-half interest in the Empire Mine, located in Patagonia Mining District, Pima County, Arizona. The Empire Mine is a patented mine, letters patent having been issued therefor, bearing date February 17, 1877, and has been assessed for taxes since that date. Taxes, without dispute, had been paid thereon for the years 1883, 1885, 1887, 1888, 1889, and 1890, as well as for other years, while the taxes for some other years had been allowed to go delinquent, and at times unpaid. Plaintiff claimed through and by virtue of a tax-deed from the county treasurer and ex officio- tax-collector of Pima County, dated the ninth day of October, 1896, for the consideration of $19.78, upon a sale-of an undivided one-half interest in said mine, on the twelfth day of April, 1894, for taxes assessed for the year 1893. The findings of fact and conclusions of law made by the trial court are as follows:—
“First. That plaintiff bases his cause of action on the tax-deed introduced in evidence, said deed having been issued by the tax-collector of Pima County, Arizona, to plaintiff, Frank H. Hereford, on the ninth day of October, 1896, for the property described in the complaint. Second. That notice of intention to apply for a deed, required to be given under section 20 of Act No. 84 of Session Laws of Arizona for 1893, introduced in evidence by plaintiff, did not and does not show service of said notice as required by said section, in that no
“As a conclusion of law from the foregoing facts the court finds that the deed issued by the tax-collector to plaintiff for the property described in the complaint was issued without authority of law, and is void. ’ ’
2. Session Laws 1893 (Act No. 84, secs. 21, 22) provide:—
‘ ‘ Sec. 21. The matters recited in the certificate of sale must be recited in the deed, and such deed, duly acknowledged or proved, is conclusive evidence that: (1) The property was assessed as required by law. (2) The property was equalized as required by law. (3) The taxes were levied in accordance with law. (4) At a proper time and place the property was sold as prescribed by law, and by the proper officer. (5) The person who executed the deed was the proper officer.
“See. 22. Such deed, duly acknowledged or proved, is (except against actual fraud) prima, facie evidence of all other facts therein stated, and of the regularity of all other proceedings from the assessment by the assessor up to the execution of the deed.”
Plaintiff, under this law, had purchased the undivided one-half interest in the Empire Mine, for which he asked the title to be quieted, and the only evidence which he introduced of his title to such mine was said tax-deed. Among the other recitations in the deed was the following: “'Whereas, the said Frank H. Hereford, the owner and holder of said certificate of sale, has filed with said party of the first part, as treasurer and ex officio- tax-collector, as aforesaid, an affidavit showing that the notice was served upon the said Samuel Katzenstein (the person owing said taxes) on the twenty-ninth day of May, 1896, as by law in such cases required, that the said owner and holder of said certificate of sale would apply for a deed to the property so sold and purchased as aforesaid; and . . . ”—which was the only evidence the plaintiff introduced to show that the notice had been served, and the affidavit filed with the tax-collector, before the issuing of the deed. Section 20 of said act provides that, if the property is not redeemed from sale, the purchaser shall have a deed reciting substantially the matters contained in the certificate; and that the purchaser, thirty days before he applies for a deed,
The record does not disclose the fact that Samuel Katzen
3. Section 26 of said act provides: “If the holder of a tax-deed, or any one claiming under him by virtue of such tax-deed, be defeated in any action by or against him for the recovery of the land sold or the possession thereof, the successful claimant shall be adjudged to pay to the holder of the tax-deed or the party claiming under him by virtue of
4. The defendant, after succeeding in the action, filed a cost-bill, in which was included for witness fees to Stephen O’Connor, and mileage from his residence at Ringgold, state of Texas, 1,168 miles, at thirty cents per mile, and ten days’ attendance upon court with the per diem of two dollars per day; making in all $370.40. Paragraph 1982 of the Revised Statutes of Arizona provides for witness fees as follows, to wit: “For attending to any civil suit or proceeding, for each day $2.00. Mileage counted from the residence of the witness —to be computed one way only—for each mile 30e.” This fee-bill applies only to witnesses who come in response to a subpoena. Witnesses served without the county are not required to attend beyond the limits of the county where they reside, and a witness is not bound to obey a subpoena for his attendance outside of his own county. If he does attend court upon the trial of any cause out of his own county, his attendance is voluntary, and he is not entitled either to per diem or mileage. He can only be entitled to his per diem when attending court in obedience to one of its writs. It further appears from the record that O’Connor was the husband of the defendant, E. 0. O’Connor, and was there as a witness in his wife’s interest in property not shown by the record to have been other than community property. A party to a suit is not entitled to witness fees, nor is a husband or wife entitled to fees while attending court as a witness for each other as parties. Paragraph 2102 of the Revised Statutes of Arizona: “All property acquired by either husband or wife during the marriage,” with certain exceptions therein named, “shall be deemed the common property of the husband and wife.” Cole v. Angel, (Tex. Civ. App.) 28 S. W. 93. Fees allowed to either while acting as a witness for the other, when a party to the suit, would, in legal effect, be allowing witness fees to the party. Therefore, the cost bill filed by the defendant will
Sloan, J., Davis, J., and Doan, J., concur.