32 Wash. 169 | Wash. | 1903
The opinion of the court was delivered by
Prior to the commencement of this action appellant was the owner of lots 1 and 2 in block 2 of Hoble’s addition to Tacoma. About May 31, 1901, respondents purchased a certificate of delinquency for taxes due against these lots for the year 1897, paying therefor the sum of $24.43. They also paid taxes against the property for the years 1898, 1899, and 1900. In July, 1901, they brought an action in the superior court, of Pierce county to foreclose such certificate. The summons in said action was served on appellant (who was then and is now a nonresident of the state) by publication. The action was brought by the prosecuting attorney of Pierce county. The affidavit for publication was made by his assistant, who stated in the affidavit that he was one of the attorneys for the plaintiffs. On September 23, 1901, a decree was entered by default for the sum of $94.45, being the amount found due for taxes, interest, and costs. Thereafter, on October 5, 1901, the property was sold pursuant to said decree and a deed issued to respondents therefor. The lots
On June 26, 1902, she filed a petition to vacate the judgment, and to set aside the sale and deed issued under the foreclosure proceedings above stated. This petition set out substantially the following reasons why the decree and sale should be vacated: (1) That the summons in said action was not signed by the holders of the certificates of delinquency, but was signed by T. Campbell, their attorney. (2) That the affidavit upon which publication was based was made by O. O. Bates, who was not the attorney of record in the case. (3) That the judgment entered was not a several judgment against each lot for the taxes assessed against it; that neither in the complaint, summons, nor notice was the amount due for taxes, interest, and penalties on each lot described; that the judgment was for a lump sum against both lots; and that in the report of sale the amount due on each lot was not stated. (4) That said lots, prior to 1891, were outside the limits of the city of Tacoma ; that a bonded indebtedness was incurred by the city of Tacoma prior, to the time when said lots were included within the limits of said city; that during the year 1897 the city illegally levied a tax against said lots for the purpose of paying interest on said bonded indebtedness incurred before said lots were a part of said city; and that said illegal tax was included in and formed a part of the same for which judgment was entered. (5) That the defendant had no knowledge that suit had been brought to
After plaintiffs’ demurrer to this petition had been denied by the court, an answer was filed, denying each of the matters set out above as reasons for vacating the judgment, and pleading affirmatively that the two lots were one tract, incapable of being subdivided by reason of the improvements thereon; that the taxes could not be segregated; that proofs thereof were made at the time of judgment; and that plaintiffs, since the purchase thereof, had expended about $400 in improvements upon the property. A reply was filed by petitioner.
Upon a hearing of the petition, defendant offered to prove the allegation that the levy against the lots for the purpose of paying interest on the bonded indebtedness incurred before the lots were included in the city amounted to 97 cents, and was included in the judgment, which offer was rejected. The defendant then showed that she did not know that her taxes against these lots had not been paid, and that the agent in Tacoma, being away from the city, had neglected to pay the same for the years 1897, 1898, 1899, and 1900. Defendant then offered to show that the lots were assessed separately, which was denied. Plaintiffs then were permitted to show that there was a building on the two lots, partly on one and partly on the other, and that the property was an indivisible property. Judgment was
Appellant bases her cause for reversal of the judgment upon four points, as follows: (1) The action was brought by B. Campbell, as attorney, the affidavit upon which publication of summons was made by C. O. Bates, and there is nothing in the record to in any way connect C. O. Bates with the ease, except the statement in the affidavit made by him that he is one of the attorneys for the plaintiffs. (2) The judgment entered in the foreclosure action should have been a separate judgment against each lot for the taxes and penalties and interest against such lot. If the property was so situated, by reason of improvements covering both lots, that it was proper to assess and levy one tax against both lots, that fact should have appeared in the original summons and application for judgment, and proof should have been given of that fact before judgment was entered, and not when application was made to vacate the judgment. (3) Because there was included in the judgment the illegal tax for the year 1897 for taxes levied to pay the interest on the bonded debt of the city of Tacoma, incurred before the lots in question were a part of said city. (4) Because, under the showing made, the court should have opened and vacated, the judgment under §§ 4953, 4880, and 5153 of Ballinger’s Code. We shall consider these points in the order stated.
1. The sufficiency of the affidavit and the summons is not questioned, except in the fact that C. O. Bates, who made the affidavit, did not sign the complaint as one of plaintiffs’ attorneys. The statute, at § 4877, Bal. Code, authorizes publication of summons “upon the filing of an affidavit of the plaintiff, his agent or attorney.” The affidavit in this case shows that the affiant is one of the
2. It is true the law provides that, in cases of tax foreclosure, the “judgment shall be a several judgment against each tract or lot or part of a tract or lot for each kind of tax or assessment included therein” (Laws 1899, p. 300, ch. 141), and that the treasurer shall sell to the person “offering to pay the amount due on each tract or lot for the least quantity thereof” (Laws 1899, p. 301, ch. 141). The reason for this rule is that the owner might want to redeem one lot or tract and not another (Lockwood v. Roys, 11 Wash. 697, 40 Pac. 346), and that, where a lot or tract is susceptible of division into smaller parcels than the whole, certain of these lots might be sufficient to pay the whole tax and leave the rest of the tract free to the owner. But where the lots or tracts are not capable of subdivision, by reason of improvements thereon, such as one building covering the whole of two or more lots, it was not intended that in such event the sale should be limited to a part of the tract or lot, where such part was incapable of being separated from the whole. It was only where the least quantity thereof was capable of subdivision that the legislature intended that a smaller part than the whole might be sold. This question arose in Million v. Welts, 29 Wash.
If the treasurer could not be required to issue a certificate upon each tract or lot, because of the indivisibility thereof, it follows that, where a certificate is issued upon several tracts, it must be presumed, until the contrary appears, that such certificate is regular, and is issued upon an entire indivisible tract, because the officer is presumed to do his duty. It was, therefore, not necessary to allege in the complaint in foreclosure that the two lots were in fact one indivisible tract. Furthermore the statute provides:
“In all judicial proceedings of any kind for the collection of taxes, assessments and the penalties, interest and costs thereon, all amendments may be made which by law can be made in any personal action pending in such court, and no assessments of property or charge for any of said taxes shall be considered illegal on account of any irregularity in the tax lists or assessment rolls or on account of the assessment rolls or tax lists not having been made, completed or returned within the time required by law, or on account of the property having been charged or listed in the assessment or tax lists without name or any other name*177 than that of the owner, and no error or informality in the proceedings of any of the officers connected with the assessment, levying or collection of the taxes, shall vitiate or in any manner affect the tax or the assessment thereof, and any irregularities or informality in the assessment rolls or tax lists or in any of the proceedings connected with the assessment or levy of such taxes or any omission or defective act of any officer or officers connected with the assessment or levying of such taxes, may be, in the discretion of the court, corrected, supplied and made to conform to law by the court. The court shall give judgment for such taxes, assessments, penalties, interest and costs as shall appear to be due upon the several lots or tracts described in said notice of application for judgment or complaint, and such judgment shall be a several judgment against each tract or lot or part of a tract or lot for each kind of tax or assessment included therein, including all penalties, interest and costs, and the court shall order and direct the clerk to make out and enter an order for the sale of such real property against which judgment is made, or vacate and set aside the certificate of delinquency or make such other order or judgment as in law and equity may be just.” Laws 1899, p. 299, ch. 141, § 18.
Under this section it is clear that the legislature intended that the court should be liberal in enforcing the collection of the tax, and in pronouncing judgment as the justice of the case demands, and that a judgment should be a several judgment against each tract or lot, or part of a tract or lot. So that, if two or more lots or parcels be adjudged an indivisible tract, the judgment should he pronounced against the same as one lot or tract, even though the assessment were against each lot separately. Under no other theory can the case of Million v. Welts, supra, be justified. When the court in this case rendered judgment against the two lots as one tract, it must be presumed, in the absence of anything to the contrary, that the court found upon sufficient evidence that the two lots constituted
Appellant argues that it was error of the court to permit respondents to file an answer to the petition. The statute (Bal. Code, § 5157) provides as follows:
“. . . The facts stated in the petition shall be deemed denied without answer, and defendant shall introduce no new cause, and the cause of the petition shall alone be tried.”
This statute does not preclude the defendant from offering any evidence he may have to rebut the evidence of the facts alleged in the petition. Bespondents were certainly authorized to offer any evidence admissible under a general denial. Their answer amounted to nothing more than a denial, and no proof was offered or received, which was not admissible without an answer. There was, therefore, no harm in filing the answer.
3. It is next insisted that the judgment should have been vacated because there was an illegal tax, amounting to 97 cents, for the year 1897, which was included in the judgment. A number of authorities are cited to the effect that a sale for taxes more than- are lawfully chargeable is a sale without jurisdiction, and therefore void. This rule is possibly correct where the sale is made upon an assessment and levy by ministerial officers, and where there is no opportunity to test the legality of the tax until after sale. But where the sale is made upon a judgment by a court of general jurisdiction, and where the owner of the property
4. Tt is urged that the trial court should have vacated the judgment and relieved the appellant therefrom, on account of her mistake, inadvertence, surprise, or excusable neglect. The sections of the statute relied upon by appellant vest in the trial court a discretionary power to vacate the judgment upon these grounds. This discretion will not he interfered with by an appellate court, where there is no abuse thereof. Titus v. Larsen, 18 Wash. 145 (51 Pac. 351); Sturgiss v. Dart, 23 Wash. 244 (62 Pac. 858). It is true that courts should he liberal in granting leave to answer, and that relief must he granted in a plain case in order to subserve the ends of justice. Hull v. Vining, 17 Wash. 352 (49 Pac. 537). But we think no such inadvertence or excusable neglect is shown in this case as to
Finding no reversible error in the record, the judgment is affirmed.
Fullerton, C. J., and Hadley, Andebs and Dunbar, JJ., concur.