Wakeley v. Nicholas

16 Wis. 588

• Court: Wisconsin Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

By the Court,

Dixon, C. J.

Upon affidavit, as prescribed by statute, the court or a judge thereof, or a court commissioner, may grant an order that the service of the summons be made by publication. R. S., ch. 124, sec. 10. “The order shall direct the publication to be made in one newspaper, to be designated as most likely to give notice to the person to be served, and for such time as shall be deemed reasonable, not less than once a week for six weeks,” &c. Id. If the circuit judge who granted the order in this case, in the exercise of the discretion vested in him by the statute, directed publication in a German instead of an English newspaper, as being most likely to give notice to the person intended to he served, we see no legal objection to it. Kellogg vs. Oshkosh, 14 Wis., 623. The publication was in the English, not the German language, so that no exception can be taken to it on that ground. Liberty to file the answer was part of the relief demanded by the motion to set aside the judgment, so that whether the answer should have been received without the deposit required by sec. 38, ch. 22, Laws of 1859, is a question fairly presented by the appeal. We think the answer in this respect defective, and that the court was in error in not rejecting it for want of the deposit. It is clear that the answer does not make a case in which no deposit is required by the the terms of the act. It does not show that the land was not liable to taxation, nor that the tax was paid before sale, nor that the deed was never executed by the clerk of the board of supervisors. If we reject tbe allegation of the omission of the railroad property from the assessment roll, as we must under Kneeland vs. Milwaukee, 15 Wis., 454, 691, the defense stands upon irregularities merely ; nothing being shown against the equity of the tas, and the substantial correctness of the proceedings. The act itself, same section, declares as a rule of pleading, that “no answer merely alleging the defendant’s title, or denying the plaintiffs title to the lands described in such complaint or any part or parcel thereof, or which merely alleges that the conveyance to the plaintiff is void, shall be a sufficient answer, but every answer shall state specifically the grounds on which the defendant or defendants rely for avoiding the conveyance of the plaintiff. Aside from the allegation as to the railroad property, the defendant by the answer, denies that the taxes “ were duly and legally assessed ; and denies that there was due on said land for taxes, at the time of the sale therein mentioned, the sum of nine and 43-100 dollars.” He further “ denies that the plaintiff is the owner of said lands,” and avers the title in himself This is not good pleading within the require ments of the act. The answer is entirely destitute of facts showing specifically the grounds upon which the defendant relies for avoiding the conveyance to the plaintiff. Besides, the denial that the taxes were duly and legally assessed, and that the sum of $9.40 was due, by implication admits the liability of the land to taxation, that it was taxed, and that the taxes were not paid. But the chief objection to the answer is, that it states no facts impeaching the equity or justice of the tax. If some technical error or omission should be found in the assessment, not affecting a substantial right, or if only the sum of $9.39 instead of $9.40 should be found due, a court of equity would not for these reasons annul the proceedings. We have no doubt that it is competent for the legislature to declare that the same rule shall be applied in all courts, so far at least, as to require the deposit or payment of the taxes equitably due, before the delinquent, tax-payer shall be permitted to avail himself of such irregularities or omissions in defense of an action brought against him. Such seems to be the scope and object of the act. It is to cut off all merely technical defenses, not going to the ground work and justice of the proceedings, and to compel payment of taxes in all cases where equity and fair dealing require that they should not be avoided. Without a statement of facts showing that the demand made upon the defendant is inequitable and unjust, we must presume that the defense relied upon, and so vaguely shadowed forth in the answer, is merely technical and evasive, and therefore the answer must be rejected.

With this unders landing of the act and of the effect to be given to it, it ceases to be the means of such oppression and injustice as the counsel for the defendant seems to suppose. It does not destroy the remedy of the defendant for any wrong or injustice which he may actually have received ; nor compel him to purchase justice, except at the expense of doing justice himself.

That the legislature has seen fit to apply so benign and correct a principle to actions of this kind, is certainly no ¡good ground of complaint, as it is manifestly no infringement of the constitution.

Order reversed, and cause remanded for further proceedings according to law.