Sayles v. Davis
22 Wis. 225
Wis.
1867
Check Treatment
DixoN, C. J.

Conceding that the notice of retainer for the purpose of prosecuting the appeal, was a general appearance in the case, still the defendant was not entitled to eight days’ notice of the time and place of application to the court for the relief demanded by the complaint. The statute requires such notice only where the defendant has given notice of an appearance in the action before the expiration of the time for answering. R. S. chap. 132, sec. 27, subd. 2. The defendant gave no notice until long after that time had expired. The position that the time for answering had not expired, or did not begin to run, until proof of due service of the summons and complaint was made and filed in the action, seems wholly untenable. The defendant was personally served with a copy of the summons and complaint within this state as required by law; and from the time of such service the court had jurisdiction in fact, though the evidence of such jurisdiction did not appear of record in the ease. The defendant being personally served, and having actual legal notice of the commencement of the suit, his *229time for answering began to run from that date, and be can gain no advantage in this respect from tbe failure of tbe plaintiff to make and file tbe requisite proof in tbe action. That is a defect wbicb may be supplied at any time without notice to tbe defendant.

Tbe answer states no defense to tbe action.

As to the omission to affix an internal revenue stamp to the tax deed under wbicb the plaintiff claims, we tbink sfieb stamp was unnecessary. the deed was executed before the passage and publication of the act of our state legislature— Laws of 1863, chap. 159. We are of opinion that Congress possesses no constitutional power, without the assent of the states, to tax the means or instruments devised by the states for the purpose of collecting their own revenues; and for our reasons in the support of this conclusion, we refer to the opinion of this court in the case of Jones v. The Estate of Keep, 19 Wis., 369. If the writs and judicial proceedings in the courts of the state cannot be' taxed by Congress, it requires no argument to show that the proceedings of the state to collect its own revenue cannot be so taxed. “ the power to tax involves the power to destroy; and the power to destroy may defeat and render useless the power to create.” the functions of government exercised in the levying and collection of its taxes are more vitally important to its existence and independence than any other. Without the free and unobstructed exercise of such power no state can exist, and all sovereignty and independence are .at an end. We cannot but regard this as an obvious departure from the spirit and requirements of our federal constitution, and contrary to the intention of the convention wbicb framed, and of the states wbicb ratified it.

Tbe tax deed of tbe defendant, executed upon a sale made prior to that to tbe plaintiff, conveys no title as against tbe plaintiff. A valid sale and conveyance under a junior assess*230ment cuts off all former titles or liens. Jarvis v. Peck 19 Wis., 74. The words “ subject, however, to all unpaid taxes and charges,” in sec. 25, chap. 22, Laws of 1859, have reference only to such unpaid taxes and charges as may have accrued subsequently to the sale on which the deed is issued.

The other grounds of irregularity relied upon to impeach the deed to the plaintiff are not specifically stated in the answer, as required by law. Laws of 1859, chap. 22, sec. 38; Wakeley v. Nicholas, 16 Wis., 588. The “ many essential particulars” in which “the requirements of law in the assessing, levying and collecting of the taxes of the year 1859, were disregarded,” are not pointed- out at all by the answer; nor is it stated how or in what manner the county treasurer was negligent “ in not properly giving notice of the proposed sale of the said, land for delinquent tax.” The-averment of the treasurer’s neglect “ in omitting to give notice in one public newspaper of all the lands in Rock county upon which taxes were delinquent for the year 1859,” is a negative pregnant, and tenders an immaterial issue. It is not material to the validity of the plaintiff’s deed, whether all the lands in Rock county were advertised or not. It is enough that the proper notice was published as to the lands which were conveyed to him. ’ And the averment that the deed is void by reason of the neglect of the clerk “ in failing to advertise, as required by law,, the time when the period allowed by law to. redeem from the tax sales for the delinquent taxes of 1859, would expire,” is equally faulty. The question is, in what particular or particulars did the clerk fail “to advertise as 'required by law; ” and this must be answered by the pleading, and the specific objections pointed out.

As the answer shows no defense to the action of the plaintiff, it follows that the circuit court was right in rejecting the defendant’s application to be let in under section 38, chap. *231125, R. S. To authorize the granting of relief under that section, upon answer, a valid and meritorious defense must be shown.

By the Court. — Order affirmed.