69 Wash. 600 | Wash. | 1912
This action was brought for the purpose of setting aside a sale of certain mining claims, made by the county of Ferry in a general foreclosure proceeding instituted to enforce the payment of delinquent taxes. A general demurrer was interposed to the complaint, and sustained, and on the election of .the plaintiff to stand thereon, judgment to the effect that it take nothing by its action and for costs was entered against it. This appeal followed.
In support of its appeal, the appellant makes four principal contentions, namely: (1) that the sale is invalid for want of a sufficient description of the property sold; (2) that the property was assessed in solido, whereas the law requires that each separate parcel be assessed separately; (3) that the summons in the foreclosure proceedings failed to comply with the requirements of the statutes and was therefore void; and (4) that it does not appear from the record that the county treasurer gave the statutory notice of the time and place of the foreclosure sale.
With reference to the description, it appears that in the assessment rolls and the foreclosure proceedings, the claims were described as the “Republic Lode” and the “Cecelia Lode”; each description being followed by a statement of the number of acres contained therein. . The names used were the names given the claims in the government’s patents;, except that the Cecelia Lode was called therein the “Cecelia Fraction.” But we think, nevertheless, the description .sufficient to identify the properties. It must be remembered that the appellant is attacking the judgment of foreclosure
Whether there is any foundation for the claim on which the second objection is based, the record does not disclose, as the manner in which the property was assessed in this respect is not shown. In the certificate of delinquency the “total amount” of the assessment is given in one lump sum, and it may be that under certain circumstances we would presume that the valuation on the assessment roll was in similar form; but we will not so presume where the effect of the presumption is to invalidate the assessment. As we have stated, the presumption is in favor of the regularity of the proceedings, and they will be presumed valid unless the contrary clearly appears on the face of the record.
The service of the summons upon the appellant in the tax foreclosure proceedings was made by publication. The summons as published was directed to the appellant, and summoned and required it “to appear within sixty (60) days after the eleventh day of August, A. D. 1906, and defend the above entitled action, or pay the amount due upon the certificate,” etc. The statute (Rem. & Bal. Code, § 9253) provides that, where service of the summons in a tax foreclosure proceeding is made by publication, the summons shall contain “a direction to the owner, summoning him to appear within sixty days after the date of the first publication of the summons, exclusive of the day of said first publication, and defend the action or pay the amount due.” The form given to which the published summons must substantially comply is as follows:
The state of Washington to the said (naming the defendant or defendants to be served by publication):
You are hereby summoned to appear within sixty days after the date of the first publication of this summons, to wit, within sixty days after the.........day of........., 1_____ and defend the above entitled action in the above entitled court, and answer the complaint of the plaintiff, and serve a copy of your answer upon the undersigned attorneys for plaintiff....... at his (or their) office below stated; and in case of your failure so to do, judgment will be rendered against you according to the demand of the complaint, which has been filed with the clerh of said court. (Insert here a brief statement of the object of the action.)
Plaintiff’s Attorneys. P. O. address, ............. county............. Washington.
It is objected to the published summons in the instant case that it does not contain a direction to the defendant “summoning him to appear within sixty days after the date of the first publication of the summons, exclusive of the day of said first publication.” In other words, it is contended that the summons in order to be valid must follow the form prescribed by the statute, and summon the defendant “to appear within sixty days after the date of the first publication, to wit: within sixty days after the......day of......and defend the above entitled action, ...” A similar objection was made to the summons in the case of Stubbs v. Continental Timber Co., 49 Wash. 431, 95 Pac. 1011, answering which we said:
“The published summons, it will be noticed, while sufficiently regular in other respects, omits the words ‘after the date of the first publication of this summons, to wit,’ which precede the actual date given as prescribed in the form, and it is this omission that is thought to render the summons void. We are of the opinion, however, that the omission is not fatal to the judgment. No doubt it was the purpose of the framers of the statute to provide a summons so definitely worded
This case is direct authority in support of the. sufficiency of the summons in the case at bar, and as we are satisfied with the rule there announced we hold the present summons sufficient in substance and form.
By the code (Rem. & Bal. Code, § 9260) it is provided that all sales of property under a tax foreclosure judgment shall be made on Saturday between the hours of 9 o’clock in the morning and 4 o’clock in the afternoon, after first giving notice of the time and place where such sale is to take place for ten days successively by posting notice thereof in three public places in the county where the land lies one of which shall be in the office of the county treasurer. The statute prescribes no form for making and preserving a
The foregoing considerations lead us to conclude that the appellant’s contentions are without force when considered upon their mex’its. There is, however, another reason why the appellant cannot prevail in this particular suit, even were the contentions considered all well taken. It is provided by statute that no action or proceeding shall be commenced or instituted in any court in this state for the recovery of property sold for taxes unless the person desiring to institute such action or proceeding shall fix-st pay or cause to be paid, or shall tender to the officer entitled under the law to receive the same, all taxes, penalties, interest, and costs
The judgment appealed from is affirmed.
Mount, Ellis, Mobbis, and Parker, JJ., concur.