Multnomah County v. Portland Cracker Co., 90 P. 155

Multnomah County v. Portland Cracker Co.

90 P. 155 | Or. | 1907

Opinion by

Mr. Commissioner Slater.

The facts as found by the lower court are not challenged by counsel for defendant, but they contend that, as a matter of law, the facts alleged and found are not sufficient to support the decree, and we are of the opinion that this contention is correct. The plaintiff argues in support of the jurisdiction of the court that this suit was brought primarily, not to collect a tax, but to cancel a false record which prevented it from collecting the tax through the statutory method, and that the additional relief *350sought is ancillary to the main or primary purpose of the suit on the' familiar principle that, when equity takes cognizance of a case for any purpose, it will administer complete relief between the parties; but, in our opinion, if the primary jurisdiction contended for fails, the ancillary relief sought must necessarily be -denied.

1. It is a familiar and well-established rule that a court of equity will not exercise its jurisdiction when the instrument or record sought to be canceled is void upon its face: 4 Pomeroy, Equity (3 ed.), §§ 1377, 1399. The entry made by Stimson on the delinquent tax roll consisted of these words, "Canceled Order Board Co. Commrs.,” written at the end of the line on which defendant’s name and the amount and details of its tax were written, and under the heading "By whom paid.” The precise time this was written thereon is not disclosed, but it is certain that it was. after the delinquent roll was delivered by the sheriff to the clerk and while in the latter’s official custody. The delinquent tax roll is a public record, comprising a statement of taxes remaining unpaid, to be made by the sheriff according to the requirements of Section 2809, Hill’s Ann. Laws 1892, then in force, and to be by him delivered to the county court. The statute particularly describes what information it shall contain. When made and delivered it is a complete public record, and no power or authority is vested by statute in any person or tribunal -to make any changes therein or add anything thereto: Burness v. Multnomah County, 37 Or. 460 (60 Pac. 1005). Whatever the county court may lawfully order done in respect to taxes due from a taxpayer should be entered in its journal required by law to be kept for that purpose, and no minute or memorandum thereof made elsewhere without any authority of law has any legal force or effect. The entry in question was not of the character of any of the items required by Section 2809, Hill’s Ann. Laws 1892, to be entered by the sheriff in the delinquent tax roll, and was void upon its face. It never was in law a part of the delinquent tax roll or, at the utmost, anything more than a priváte memorandum, which could not in any way have con*351.trolled or affected the action of any officer of the county in performing his official duties involved in the collection of this tax in the manner required by law. Section 2814, Hill’s Ann. Laws 1892, then in force, required the county clerk to

“Make from said delinquent tax roll a true and correct list of the taxes returned as unpaid, and a correct description of the lands or town lots, if the same can be -made, and to whom such taxes are charged, and deliver the same to the sheriff of the county, with a warrant attached thereto,” etc.

It will be observed that the clerk must make a list “of the taxes returned as unpaid” by the sheriff. He could not do less by leaving out the tax of one or more, but must include all. At least an unauthorized memorandum made upon the delinquent roll, as in this case, could not stay his hand.

2. Nor can the jurisdiction of a court of equity be invoked to cancel of record the admittedly false and forged entry in the commissioners’ journal respecting this tax. It is a record of the official acts and orders of the county court when transacting county business, and, like the record of any other court, is subject to correction and amendment by that court within the salutary limitations recognized by law. “A judgment void upon its face,” says Mr. Justice Wolverton, in White v. Ladd, 41 Or. 324 (68 Pac. 739: 93 Am. St. Rep. 732), “may be set aside or vaeáted at any stage of the proceedings, or at any time, whether within the term at which it was rendered or afterwards, when the attention of the court in which it was rendered is attracted to it. Such a judgment, it has been said, fls a dead limb upon the judicial tree, which should be lopped off. * * It can bear no fruit to the plaintiff, but it is a constant menace to the defendant.’ This power is inherent with the court, and will be exercised, even at its own suggestion, for the preservation of its dignity, the protection of its officers, and to arrest further action which can serve no lawful purpose, and the most effectual method is by extirpation of the judgment itself as superfluous and vexatious: Evans v. Christian, 4 Or. 375; Ladd v. Mason, 10 Or. 308; People v. Greene, 74 Cal. 400 (16 Pac. 197: 5 Am. St. Rep. *352448); Lee v. O’Shaughnessy, 20 Minn. 173 (Gil. 157); Hanson v. Wolcott, 19 Kan. 207.” On August 7, 1903, and nearly six months before the commencement of this suit, the County Court of Multnomah County, sitting for the transaction of county business at a regular term thereof, made an order setting aside and annulling the order hereinbefore mentioned. The action of the court in thus purging its record of the forged entry was within its power, and there was nothing left upon the record, if there ever was anything thereon, to hinder or prevent the county officers from proceeding according to the statute to collect this tax.

3. It is stated in the complaint that, because of the alleged fraudulent entries, the plaintiff cannot collect the tax in the manner provided by law, implying that, if these alleged obstacles were removed, the tax could be collected in the usual manner; nor is there any other fact alleged which might tend to establish and support the jurisdiction of a court of equity in giving its aid to collect this tax. The rule that a court of equity obtaining jurisdiction of a cause for one purpose will retain it until complete justice is administered can have no application to this case; for, the jurisdiction being dependent upon the alleged necessity to correct a record which, in one instance, was not a record at all and was void upon its face, and, in the other instance, had been canceled by a competent court before the commencement of this suit, the court was powerless to render a money judgment for the amount of the tax: Phipps v. Kelly, 12 Or. 213 (6 Pac. 707); Ming Yue v. Coos Bay R. Co. 24 Or. 392 (33 Pac. 641); Stemmer v. Scottish Ins. Co. 33 Or. 65 (49 Pac. 588, 53 Pac. 498); Penny v. McGown, 34 Or. 47 (54 Pac. 952).

It follows that the decree should be reversed and the suit dismissed. • Reversed.