Kipp v. Dawson

59 Minn. 82 | Minn. | 1894

Canty, J.

This action is brought to test the validity of a tax title under the forfeited tax sale of 1881. Laws 1881, chi 135. 1878 G-. S', ch. 11, § 72, requires the board of county commissioners to designate by resolution the newspaper in which the delinquent tax list, and notice of application for judgment thereon, shall be published, and provides that a copy of such resolution, “certified by the county auditor, shall be filed in the office of the clerk of the court.” It is claimed by plaintiffs that the copy of the resolution filed in the clerk’s office in this case was not properly certified, and this is the only defect urged against the tax judgment and sale. The court below found in favor of the validity of the tax judgment, and, from the judgment entered against them in this action, plaintiffs appeal.

The certificate of the county auditor to the copy of the resolution so filed is as follows:

“State of Minnesota, County of Chisago — ss.: I, J. P. Nord, county auditor of Chisago county, hereby certify that the foregoing is a true and correct copy of a resolution passed by the board of county commissioners of said county at their session held at Centre City, in said county, on the 15th day of March, 1881, as the same appears upon the records of my office. Witness my hand and official seal at Centre City, Chisago county, state of Minnesota, this 1st day of June, A'. D. 1881.

“[Official Seal.] J. P. Nord,

“County Auditor, Chisago County.”

It is contended by appellants that 1878 G-. S. ch. 73, § 63, applies to such a certificate as this, and that the auditor should have certified the copy of the resolution “to have been compared by him Avith the original, and to be a correct transcript thereof.” We are of the opinion that section 65 does not apply to such a certificate as this. It, as well as some of the other sections in that chapter, provides the manner of certifying to copies of public records with a view to their use as evidence on the trial of actions. The provision requiring the certificate to state that the copy had been compared with the original is analogous to the oral evidence necessary to prove an examined copy at common law. 1 Greenl. Ev. § 508. “ ‘To certify’ means to testify to a thing in writing, and the statute does not prescribe any particular form of certification.” State ex rel. v. Brill, 58 Minn. 152, (59 N. W. 989.) We are of the opinion that the certificate in question is sufficient.

The plaintiffs called as a witness a person sitting in the court room at the time of the trial, but the person refused to be sworn or to testify because he had not been subpoenaed, or paid his witness fees, and the court ruled he had no power to compel him to be sworn. Plaintiffs assign this as error. It is not necessary to decide'whether or not the witness, under‘such circumstances, should be subpoenaed. He was just as much entitled to his per ctiem witness fee in advance, when he demanded them, as if he had been duly subpoenaed. Besides, it does not appear that the witness was at all material.

The judgment should be affirmed. So ordered.

Gileillan, C. J., took no part.

(Opinion published 60 N. W. 8450

Petition for reargument denied Dee. 4, 1894.