Gilman v. Sheboygan County

48 N.W. 111, 79 Wis. 26, 1891 Wisc. LEXIS 58

• Court: Wisconsin Supreme Court
• Decided: February 3, 1891
• Status: Published

Opinion

Cassoday, J.

It is, in effect, alleged in the complaint, and conceded, that the lands described were assessed and taxed to the plaintiffs as the owners thereof, in each of the years 1886, 1887, and 1888, and that they fully paid the taxes thereon for each of those years. It is therein alleged, in effect, and conceded, that a portion of the same land, by a differently worded description, was assessed and taxed to G-roh as the owner thereof, for the same years, and for the same purposes, and by the same municipality; and that the defendants were engaged in forcing the collection thereof against the same land. This action is to set aside such last-named assessment, and the proceedings thereon, as clouds upon the title of the plaintiffs. The contention is that Groh and certain members of his family claim to be the owners of such land, and hence should be made parties defendant. Assuming that the Grohs claim to be such owners, yet, from the very nature of the case, their presence as defendants cannot be sought to confirm and establish such assessment and tax proceedings, since that would only burden and tend to cut off whatever title they might have in the premises. In other words, whatever interest the Grohs may have in the controversy is adverse to the enforcement of said tax proceedings, and hence adverse to the claim of the defendants. Assuming that there is an existing controversy between the plaintiffs and the Grohs in relation to the title to the land, and that there is an action of ejectment pending to determine that controversy, yet that controversy cannot be determined in this action, which is entirely for a different purpose. In other words, such action of ejectment cannot properly be consolidated with this equitable action. The removal of the tax proceedings, as a cloud on such land, would necessarily be beneficial to the ownei’s of the land, whoever they may be, and hence the Grohs have no interest in that controversy adverse to the plaintiffs, within the meaning of sec. 2603, R. S. Nor are they necessary parties to a complete determination of the questions involved in this action, within the meaning of that section.¹ It is contended that the plaintiffs have no title to the land covered by such taxes, and hence have no interest in removing the cloud from the title. If that is so, then the defendants can prove such want of title without making the Grohs parties, just as effectually as could be done if they should'be made parties. Whatever may be the determination of that question in this action, yet it can in no way affect the pending controversy in the other action. This is not only obvious from the very nature of the case, but has, in effect, been recently decided by this court. Burr v. C. C. Thompson & Walkup Co. 78 Wis. 227. The order of the circuit court, refusing to make the Grohs parties defendant, is affirmed. The defendants were confessedly seeking to enforce a double assessment upon the same land. To do so would be inequitable and unjust. To stay proceedings in this action, as asked, might compel the plaintiffs to pay such double tax, or lose title to their land by the tax proceedings becoming conclusive against them. Manifestly, the application for such stay was properly denied. Counsel for the plaintiffs claim that the order thereon was not appealable, but it is unnecessary here to pass upon that question. ' The order of the circuit court refusing such stay is affirmed.

By the Court.—Both orders affirmed.

1 Sec. 2603 provides that such persons may be made parties defendant.