Potter v. Brown County

14 N.W. 375, 56 Wis. 272, 1882 Wisc. LEXIS 298

• Court: Wisconsin Supreme Court
• Decided: December 12, 1882
• Status: Published

Opinion

Oetoh, J.

This action was to set aside and cancel certain tax certificates on the plaintiff’s land, and enjoin the issuing of tax deeds thereon, on the ground of the assessment being illegal and void, and other defects in the proceedings going to the groundwork of the tax. There was no appearance or answer. There is no hill of exceptions, and whether the court had any evidence before it or not, we cannot know; but it must be presumed it had, if necessary; but under the second subdivision óf sec. 2891, R. S., no evidence is necessary in such case, except to enable the court to give judgment. There were no findings of fact, and in such case, where there is no issue, none need be made. Sec. 2863, R. S.; Krause v. Krause, 23 Wis., 354. The main point urged in the brief of the learned counsel of the appellant is that the circuit court should have stayed all proceedings in this casé, without final judgment, until a reassessment could be made, under sec. 12105, R. S. But that section only requires such stay, of proceedings “in actions hereafter tried upon issue joined in any of the courts,” etc. Here there was no issue joined, and of course there was no trial, for “ a trial is a judicial examination of the issues between the parties,” etc. Sec., 2842, R. S. It is therefore clear that a stay of proceedings was not necessary in this case, it not being a case within the terms of the above statute, and to extend that statute to such a case would be judicial legislation.

There appear to be no errors in the record.

By the Court.— The judgment of the circuit court is affirmed.