75 Neb. 538 | Neb. | 1906
Under the provision of sections 1-48, article IX, chapter 77, Compiled Statutes 1903 (Ann. St. 10644-10691), commonly known as the “Scavenger Act,” a petition was filed in the district court for Douglas county, Nebraska, upon the first day of July, 1904, for the foreclosure of delinquent taxes. The appellant Annie B. Homer is the owner of a certain tract, described in the petition, against which certain taxes and special assessments were levied. Notice was published as required by law, and, default having been made by her, a decree was entered foreclosing the tax lien. Before this tract was offered for sale .by the county treasurer, the appellant filed in the district court a motion to vacate the default decree, and for per
The appellant's first contention is .that section 82 of the code applies to the opening of judgments upon constructive service rendered under the provisions of this act. She further contends that, irrespective of section 82 of the code, a court of equity has power to set aside a default decree after the term at which it was rendered, and to permit a defense to be made. An inspection of the provisions of the law discloses, among other things, that it is made the duty of every property owner to examine the petition; that the petition is to he taken as prima facie evidence of the legality of the taxes and of the amounts levied, and that such taxes and assessments are unpaid and deliquent; and the court is directed to enter a decree, where no answer has been filed, that the taxes are valid liens against the real estate, and that the amounts charged in the tax record are justly due to the plaintiff and chargeable against said parcels respectively. Further, it is made the duty of the clerk of the district court immediately after the first of September of each year to enter default by writing or stamping the word “defaulted” in the tax record, in the column ^.marked defaulted, against each parcel of land upon which the taxes and assessments shown in the petition have not been fully paid, and on behalf of which no answer has been filed. It is further provided that the decree shall be taken and held to he several decrees against the several parcels of land set forth in the petition.
The act further provides for the service of a notice upon the owner by personal service, if a resident, and by publication, if a nonresident, as well as upon every person in actual occupancy of the lands purchased, before confirmation may be had, and provides for the keeping of a “confirmation record” by the clerk of the district court, which shall describe the lands and notify the owner of the time and place for confirmation. It also provides for an examination of the proceedings by the court, and an order of confirmation if the purchaser is entitled thereto. Any person having an interest in the real estate may, at any time before confirmation, file objections thereto and enter notice thereof in the confirmation record.
Section 39 is as follows: “Confirmation of sale shall
It will be observed that the fifth ground upon which confirmation may be refused is “that the taxes and assessments, or a part thereof, were based upon proceedings wherein there had been fraud, gross injustice or mistake.” This'is a very broad and far-reaching provision. We have already considered and construed the force and effect of a like provision with regard to special assessments, and have held in Wead v. Omaha, 73 Neb. 321, that a proceeding which deprives a person of his property by means of a void tax is “gross injustice.” If the proceedings by which’ it was sought to impose a special assessment upon the appellant’s property were void, they were certainly grossly unjust, and the appellant has the right at a subsequent stage of the proceedings to raise an issue .as to the validity of such assessment, and to have the same tried and determined. While there is no provision in the law for setting aside or modifying the default decree, section 48 of the act under consideration provides: “This act shall be deemed to be cumulative,” etc. Plaintiff, then, still has the right reserved to her, which is provided under the general revenue law, of paying the taxes assessed against the -property, under protest, and bringing an action to-recover the same by legal proceedings in the ordinary method. Not only are these rights preserved to her, but if the tax she complains of is
We do not wish to be understood as deciding that, if the district court in its discretion had permitted the filing of the answer and had litigated the questions at issue, its decree would not have been valid, but, the court having
The judgment of the district court is therefore
Affirmed.