Gates v. Johnson

Grant, C. J.

{after stating the facts). 1. The hearing upon the petition of the auditor general was fixed for November 13, 1893. Court was in session upon that and the following day. The circuit court journal shows that this was a special term; that the court had a hearing in tax matters; that an adjournment was duly had from the 14th to the 15th. On the 15th, court was opened in due form by the sheriff, and, the circuit judge not appearing, court was adjourned at 6 o’clock p. m. until the following day. The like proceeding was had on November 16th and 17th, and on the 18th, the judge not appearing, the court was adjourned without day. It was shown by the clerk of the court that the judge instructed the clerk to thus adjourn the court for the purpose of receiving and filing protests. None were filed, and on November 23d •the decree was made and filed as of November 18th.

It appears from the record that these adjournments were had from day to day for the purpose of allowing taxpayers to file their protests. Evidently they would have been considered if they had been filed. It was not necessary for the court to be actually in session in order that a taxpayer might file his protest, or petition for further time to do so. While he could present it to the court without filing, it is customary to file all such papers before the hearing. This is not a case where the court had closed the term and adjourned sine die. Defendant could have *665 had his day in court, had he seen fit to file his objections •within the five days. He was not deprived of the right so to do. He did not appear at the court-room to present his paper, or at the clerk’s office to file it. It is a fair inference that the judge was ready to appear in court and hear him or any other taxpayer who desired to present his claim. The judge is not required to actuary sit upon the bench, so as to enable the taxpayer to make his application. Had the judge actually been present every morning, and, there being no business, had adjourned the court to the following morning, there would have been a session of the court, within the meaning of the law. There is no time fixed by the law, as there is for boards of review, to be in actual session.

2. The statute provides that, “immediately after the entry of such decree, the county clerk shall make a certified copy thereof, and annex the same to the tax record.” Act No. 306, Pub. Acts 1893, § 67. A tax deed cannot be collaterally attacked except in cases where it appears upon the face of the record that the court had no jurisdiction. It is not the certified copy of the decree that confers jurisdiction to sell the lands, but the decree itself. Counsel cite, to support their contention, Hall v. Mann, 118 Mich. 301 , and Hooker v. Bond, Id. 355 . The question was not passed upon in either of these cases. The statute provides “that no sale shall be set aside after confirmation, except in cases where the taxes were paid or the property was exempt from taxation.” Act No. 306, Pub. Acts 1893, § 70. In Spaulding v. O’Connor, 119 Mich. 45 , we said of this provision: .

“ If we hold that a sale may be set aside for irregularities, other than the two excepted, upon petition filed after confirmation, we shall have difficulty in finding a purpose for this provision, and in such case it might as well have been omitted from the law.”

Section 99 of the law also provides that no sale “shall be held invalid by any court of this State on account of any * * * irregularity, informality, or omission, or *666 want of any matter of form or substance, in any proceeding, that does not prejudice tbe property rights of the person whose property is taxed.” The failure to attach the certified copy is not an irregularity which prejudices the property rights of the defendant.

3. This point is ruled against the defendant by Wilkin v. Keith, ante, 66. This point cannot be raised in a collateral proceeding.

Judgment affirmed.

The other Justices concurred.