(202 P.) and shall deliver the remaining copies to the party procuring the same to be made, or to his attorney, and such party or his attorney shall, within five days from receipt thereof, serve one copy, together with a notice particularly designating by page and line any errors or omissions which he claims to be disclosed by the transcript, in the event he claims that there are any such errors or omissions, upon the adverse party or his attorney." In Strand v. Crooked River, etc., Co., 23 Idaho, 577, 131 Pac. 5, this court held that the failure to serve the transcript on the adverse party is an omission which is jurisdictional. In Bohannon Dredging Co. v. England, 30 Idaho, 721, 168 Pac. 12, it held that service of the transcript upon the adverse party is mandatory, and failure to make such service, as required by the statute, divests this court of jurisdiction to entertain the appeal. However, in Boise-Payette Lumber Co. v. McCarthy, 31 Idaho, 305, 170 Pac. 920, this court said that the language used in Bohannon Dredging Co. v. England, supra, might lead to some confu sion, and stated: "We take this occasion, therefore, to modify the statement made above in this particular: That the failure to make the service required by sections 4820a and 4434 would divest this court of jurisdiction to consider on appeal the record or that portion thereof involved in the failure of service. Such failure of service might in proper cases be ground for a motion to strike, and neither in that case nor in this are we considering the question as to whether such service may be waived." In this case the reporter's transcript was not served upon respondent or his attorney within five days from the receipt thereof by appellant's attorney. It is not necessary for us to decide whether the transcript was delivered to, and received by, him within the meaning of the statute when it was delivered by the express company at his office in his absence. It certainly was received by him when he returned to his office on August 28 and found it there. If it be held that service of the reporter's transcript by mail is permissible under the provisions of C. S. § 7199, and that the service was complete when the transcript was deposited in the post office (C. S. § 7201), even then the service was not made until September 6, and more than five days had elapsed since the receipt by appellant's attorney. Under the authorities above cited, the reporter's transcript should be stricken on respondent's motion, unless the service within five days was waived. Boise-Payette Lumber Co. v. McCarthy, supra. The settlement of the reporter's transcript in the first instance is by the trial court. C. S. § 6886, subd. 3, provides: "At the expiration of the time limited for designating errors, the transcript, with any notice designating errors shall be transmitted to the judge who tried the cause, by the clerk, on application of either party, and such judge shall forthwith settle the same, notifying the parties by such notice as he deems adequate of the time and place of settlement in the event of any error designated by notice and not agreed to." After service upon him of the transcript, respondent's attorney had 10 days to point out errors. C. S. § 6886, subd. 2. No errors were pointed out by either party. They both knew that at the expiration of the time limited for designating errors the transcript would be settled by the judge without hearing, if none were designated. The failure to serve the transcript within the statutory time is jurisdictional in the sense that it deprives the court of jurisdiction, if proper and timely objection is made on that ground, but is not jurisdictional in the sense that it cannot be waived. The failure to make timely and proper objection results in a waiver, and the way to make timely and proper objection is to object in the trial court to the settlement of the transcript. If appellant fails to make such objection and permits the transcript to be settled, the point is waived. There was such a waiver in this case because no objection was made in the trial court to the settlement of the transcript. The motion to strike the reporter's transcript is denied. The motion to dismiss the appeal is denied. RICE, C. J., and BUDGE, DUNN, and LEE, JJ., concur. (34 Idaho, 747) EATON et al. v. McCARTY et al. (No. 3483.) (Supreme Court of Idaho. Dec. 31, 1921.) 1. Mortgages 144-Tax sale purchaser, subsequently taking mortgage, not precluded from relying on tax title. When one purchases property at a sale for delinquent taxes, the fact that he later takes a mortgage on it does not preclude him from relying on his tax title. 2. Mortgages 200 (3)-Taxes paid by one subsequently becoming mortgagee are not a part of mortgage debt. Under such circumstances the taxes paid are not part of the mortgage debt. 3. Taxation 788 (4)-Tax deed is prima facie evidence of validity of assessment. A tax deed is prima facie evidence of the validity of the assessment and levy of the tax, and must be overcome by one asserting the contrary. Appeal from District Court, Kootenai County; Robert N. Dunn, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by Hattie Eaton for herself and as executrix of the estate of Pressley Eaton, deceased, and others against E. A. McCarty and wife and others to quiet title. From 'judgment for the defendants, the plaintiffs appeal. Affirmed. tors or assigns, to pay, or cause to be paid, the sum of money above specified, at the time and in the manner above mentioned, together with all charges and disbursements, and the said twenty-five dollars, attorney's fees, if any there shall be. And if default be made by the party of the first part, in any of the fore J. Ward Arney, of Coeur d'Alene, for ap going provisions, it shall be lawful for the pellants. Ezra R. Whitla, of Coeur d'Alene, for respondents. party of the second part, her heirs, executors, administrators or assigns, or her attorney, to declare the whole sum above specified to be due." The taxes represented by the tax certificate were not paid, and in 1916 respondent M. E. McCarty, after giving notice to appellants of her intention to apply for a tax deed, took a tax deed to the property and sold the same to appellant Neil Coventry. Respondents E. A. McCarty and M. E. McCarty were, at all times covered by the transactions in question, husband and wife. Appellants brought this action to quiet title. From a judgment for respondents this appeal is taken. There are many assignments of error, but all the material points can be passed upon in the consideration of the one assignment that the court erred in entering judgment for respondents. [1, 2] Of the several points raised by appellants it is necessary to pass on only two. The first is that, since the relation of mortgagor and mortgagee existed between appel Carty, the latter had no right to rely on the tax title, but should have included the taxes in the mortgage debt and recovered on foreclosure. C. S. § 6949, provides: MCCARTHY, J. This is an action to quiet title to certain land in Kootenai county, instituted by appellant Hattie Eaton, per se, and as administratrix of the estate of Pressley Eaton, deceased, and guardian of her minor children, Truman Eaton, Gladys Eaton, and Clayton Eaton, and by appellants May Thomas and Oscar Eaton, sui juris. The property in controversy was the homestead of Pressley Eaton and appellant Hattie Eaton, his wife. In 1904 he died, leaving as his heirs appellant Hattie Eaton and his children, the other appellants. Appellant Hattie Eaton was appointed administratrix of his estate. In 1908 she married Horace Roy, from whom she was divorced the same year. The taxes for 1910 upon said property were not paid. On July 13, 1911, tax certificates, based upon the delinquent 1910 taxes, were issued to Kootenai county, and sold on August 29, 1911, to respondent E. A. McCarty. They were assigned by him to respond-lant Hattie Eaton and respondent M. E. Mcent M. E. McCarty. On September 6, 1911, appellant Hattie Eaton, under the name of Hattie Roy, mortgaged the premises to respondent M. E. McCarty to secure a note in the sum of $175. The mortgage provided: "If the said Hattie Roy, her heirs, executors or administrators shall well and truly pay, or cause to be paid, to the said party of the second part, her heirs, executors or assigns the sum of one hundred and seventy-five & 80/100 dollars according to the conditions of one promissory note executed by Hattie Roy bearing even date herewith, and also to pay all taxes which now are or may be hereafter assessed on said premises as they shall become due, then this deed to be void. But if default shall be made in the payment of the said sum of money, or the interest, or the taxes, or any part thereof, at the time and in the manner hereinbefore specified for the payment thereof, the said party of the second part, her heirs, executors, administrators and assigns, are hereby authorized and empowered to sell the hereby granted premises, and convey the same to the purchaser, agreeable to the statutes in such case made and provided, and out of the moneys arising from such sale to retain the principal and interest which shall then be due on said note and all taxes upon said lands, together with all charges, disbursements, and twenty-five dollars, attorney's fees, and pay the overplus, It is held, however, that this rule does if any, to the said party of the first part, her not obtain where the taxes become delinheirs, executors, administrators or assigns. "6949. There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter." The action provided for is one in foreclos ure. It is held in some jurisdictions that a mortgagee cannot acquire and assert a tax title against his mortgagor. The reason for such decision is summed up by Cooley on Taxation as follows: "The tax being one that purposely is made to override the lien of the one as well as the title of the other, it might well, as it seems to us, be held that neither mortgager nor mortgagee was at liberty to neglect the payment, as one step in bettering his condition at the expense of the other, but that the presumption of law should be that the party purchasing did so for the protection of his own interest merely. And so, in general, are the authorities." 2 Cooley on Taxation (3d Ed.) p. 970. "And the said Hattie Roy does further cove-quent and the property is bought at tax sale nant and agree to and with the said party of before the mortgage is given and the relathe second part, heirs, executors, administra- tion of mortgagor and mortgagee arises. Al (202 P.) len et al. v. Dayton Hotel Co., 95 Tenn. | Heiss, Ex'r, etc., v. Murphey, 40 Wis. 276, at 480, 32 S. W. 962; McLaughlin v. Acom, 58 291; Beardsley, Ex'r v. Selectmen of BridgeKan. 514, 50 Pac. 441. In the present case port et al., 53 Conn. 489, 3 Atl. 557, 55 Am. the taxes were for 1910. They were assess- Rep. 152. In others the word is defined to ed, became delinquent, the property was sold mean a child who has lost both parents or at tax sale, and the tax certificates were its father. Friesner v. Symonds, 46 N. J. purchased before the mortgage was given. Eq. 521, 20 Atl. 257; Soohan v. City of Respondent M. E. McCarty certainly owed Philadelphia, 33 Pa. 9, at 32; 29 Cyc. 1531. appellants no duty to pay the taxes at the Considering the purpose of the statute and time they were paid and the tax certificates the language used, the expression "resident were bought. As for the suggested applica- orphans" must mean minors. Only one of tion of C. S. § 6949, the question is, Were the appellants, Clayton Eaton, was a minor these taxes secured by the mortgage? Clear- when the 1910 taxes were assessed. Under ly they were not. The mortgage gave re- any of the above definitions he was an orspondent M. E. McCarty the right to pay phan at that time. The assessment in 1910 any taxes assessed and unpaid after it was and the sale in 1911 were governed by the executed, and to include the amount in the provisions of the Revised Codes of 1907. mortgage debt. The taxes in question were The issuance of the tax deed in 1916 was paid, not under the mortgage, or by the governed by the provisions of chapter 8 of mortgagee, but before the relation of mort- the Extraordinary Session of 1912. See secgagor and mortgagee existed. The amount tion 28 thereof. Section 1764, R. C., providing so paid was not secured by the mortgage, that a tax deed is prima facie evidence that and could not be included in the mortgage the property was assessed as required by debt. We conclude that the respondents had law, and the taxes were levied in accorda right to stand upon the tax title. ance with law, was still in effect, as to the deed based upon the delinquent taxes of 1910. See section 28 of the 1912 law, supra, and section 213 of chapter 58 of the Session Laws of 1913. Therefore the tax deed issued in 1916 is prima facie evidence that the taxes were assessed and levied in accordance with law. The assessment roll was not introduced in evidence. There is noth- · ing in the tax certificate, tax deed, or any other evidence introduced, to show that, if appellant Clayton Eaton was entitled to an exemption as an orphan, he was not granted it. There is nothing in the evidence to show that he was in 1910 a resident within the meaning of the statute. Appellants did not overcome the prima facie case made out by the tax deed. We conclude that the assessment and tax deed were valid. [3] The second question is, Was the tax a valid one? R. C. § 1644, which was in effect in 1910, provided that the property of resident widows and orphan children is exempt from taxation not to exceed the amount of $1,000 to any one family, when their total assessment is less than $5,000. It is not shown that appellants gave any notice of a claim of exemption. They contend that, since the statute did not require any notice of such a claim, none was necessary. For the purpose of this case we will assume, without expressly deciding the point, that such notice was not necessary. The appellant Hattie Eaton, after the death of her first husband, Pressley Eaton, had married Horace Roy and been divorced from him. That was her status at the time of the assessment. A widow is a woman who has lost her husband by death and has not married again. Webster's New International Dictionary. Black's Law Dictionary, p. 1241. She was not a widow in 1910. The children had lost their father by death, but their mother was living. An orphan is a child bereaved by death of both father and mother, or, less commonly, of either parent. Webster's New In view of the conclusions we have reached on the questions above discussed, it is unnecessary to mention other points argued in the briefs and on the hearing. The judgment is affirmed with costs to respondents. RICE, C. J., and BUDGE and LEE, JJ., concur. DUNN, J., being disqualified, did not sit International Dictionary. In some judicial at the hearing, and took no part in this decidecisions the above definition is accepted. Į sion. (110 Kan. 133) STATE v. RENKER. (No. 23736.) (Supreme Court of Kansas. Dec. 10, 1921.) (Syllabus by the Court.) Schools and school districts 63(1)-Treasurer may not be ousted, under General Statutes, for removing public officials, but only under a school statute. ting rid of a derelict school district officer. Section 8952, Gen. Stat. 1915, provides: director, clerk or treasurer of any school dis"Every person duly elected to the office of trict, who * * * having entered upon the duties of his office shall neglect or refuse to perform any duty required of him by the provisions of this act, shall thereby forfeit his right to the office to which he was elected or appointed, and the county superintendent shall thereupon appoint a suitable person in his stead." The ouster law of 1911 (Gen. Stat. 1915, §§ 7603-7618), providing for the removal of unfaithful public officials and prescribing a procedure therefor, only relates to such officials For the removal of so inconsequential an as are specifically named therein, and it does official as a negligent or unfaithful school not deal with the matter of unfaithful school district treasurer, the elaborate machinery district treasurers; there being another stat-prescribed by the ouster law of 1911 is unute (Gen. Stat. 1915, § 8952), which specifical- necessary. Upon due notice and a fair hearly and adequately covers the latter subject. Appeal from District Court, Trego County. Action by the State against George Renker to oust him from the office of School District Treasurer. Judgment for the defend ant, and the State appeals. Affirmed. ing, the county superintendent has power tc John R. Parsons, of Wa Keeney, for ap-ognizes that the question of forfeiture of a pellant. school district office and of the removal of Herman Long, of Wa Keeney, for appellee. an incumbent who has forfeited his right thereto is a justifiable controversy; but this DAWSON, J. The state appeals from a is apart from the act of 1911 under which judgment in which ouster of a school dis- this action is attempted to be maintained. trict treasurer for alleged misconduct in of-Furthermore, if the act of 1911 did apply fice and neglect of official duty was denied. to school district officers, before it could The action was sought to be maintained have been regularly instituted, the facts of under the ouster law of 1911 (Gen. Stat. the officer's dereliction should have been 1915, §§ 7603-7618), which provides for the submitted by the county attorney to the Atremoval of unfaithful public officers and out- torney General (sections 7611, 7616), and the lines a procedure therefor. latter's approval to the commencement of This act (secsuch action by the county attorney should tion 7603) provides thathave been obtained. This is a statutory prerequisite to the commencement of an action by the county attorney under the ouster "Every person holding any office of trust or profit, under and by virtue of any of the laws of the state of Kansas, either state, district, county, township, or city office, who shall willfully misconduct himself in office, or who shall willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state of Kansas," etc., shall forfeit his office and shall be ousted therefrom in the manner prescribed by the statute. This statute specifies the offices subject to forfeiture under its provisions. Expressio unius est alterius exclusio. It does not specify a school district office, for the very good reason that there is another effective and summary method provided by law for get law of 1911. There are other provisions of law authorizing actions by the county attorney for the removal of officials who have forfeited their right to hold their offices, such as section 2594, the procedure for which is outlined in section 3746; but these are inapplicable here. In view of the foregoing, it is needless to consider the appellant's objections to the trial court's refusal to enter judgment of ouster in this case; and the judgment is affirmed. All the Justices concurring. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (110 Kan. 95) (202 P.) CONLEY V. KANSAS CITY et al.* (Supreme Court of Kansas. Dec. 10, 1921.) (Syllabus by the Court.) construction company resulted in a judgment in plaintiff's favor, from which defendants appeal. The accident occurred on August 6, 1915, about 9 o'clock in the evening. The petitior. alleges that defendants carelessly placed upfor travel by pedestrians" the water pipes on the part of the street "ordinarily used in question and other materials, "and negligently allowed the same to remain in and upon said portion" of the street; that it was the duty of the construction company in the prosecution of the work of repair to keep the portion of the street "ordinarily traveled by pedestrians in a safe condition" for travel, and to place signal lights or other signals on or about the water pipe in the nighttime to warn the traveling public of the unsafe obstruction, which duty the construction company wholly failed to perform. The answer was a general denial, with 1. Municipal corporations 799-Facts held not to show any negligence of defendants, city and contractor, while improving street. Plaintiff, in the nighttime, while walking to her home, came to a street which was in process of being repaired. At or near the point where she entered the street, the contractor had placed a barricade across the repaved portion, and had stationed a watchman, who spoke to the plaintiff and told her not to walk in the street, but to stay on the sidewalk until she got to the alley or crossing; then she could go out into the street. Before reaching the alley she started across the park strip to get into the street, and was injured by falling over some pieces of iron water pipe which the contractor had left lying lengthwise on the park-pleas of contributory negligence. ing. Claiming that defendants owed her the Wyandotte street runs in an easterly and duty to give her warning of the presence of westerly direction. It was being repaved bethe water pipe, or to have placed lights there- tween Twenty-First and Twenty-Second on, she sued the city and the contractor for Streets. The construction company had damages. Held, that the facts stated failed placed barricades across Wyandotte to show negligence on the part of the defendTwenty-First street and Twenty-Second ants. street and kept a watchman there at night. Plaintiff testified: (Additional Syllabus by Editorial Staff.) 2. Municipal corporations 799 Cities required to use only reasonably sufficient means to warn pedestrians of dangerous condition of street. In an action for negligence by one injured because of obstructions in street being repaired, an instruction limiting the defendant city to the use of certain methods of precaution is erroneous, for the city is required to use only such means as are reasonably sufficient to warn pedestrians of the street's dangerous condition. Appeal from District Court, Wyandotte County. Action by Eva Conley against the City of Kansas City, Kan., and another, for damages for personal injury. Judgment for plaintiff, and the defendants appeal. Reversed and remanded, with directions to render judgment for the defendants. A. H. Skinner, H. J. Smith, Wm. Drennan, and W. L. Wood, all of Kansas City, for appellants. Herrod & Roberts and W. W. McCanless, all of Kansas City, for appellee. at That she was returning to her home and reached Wyandotte street going east. "It was dark; when I started to walk from TwentySecond street down Wyandotte a man rose up and said, 'Oh, lady! don't go out on that street; stay on the sidewalk until you get further down by the alley-the crossing-then you can go out.' That is all he said. I stepped right back on the sidewalk and walked on toward my home. When I got down to the crossing-it was an alley; I call it an alley; it was a parkway; some of them call it a crossing. When I got down to this point, I started to go out in the street, and I fell on something. I was just stepping out there; I was going to walk down the middle of the street. Well, I always had a habit-my mother always told me to walk in the middle of the street after night; I was afraid of alleys. *** I fell into the street. * * The first thing I knew a man asked me if I was On cross-examination, she testified: PORTER, J. Eva Conley, a woman of about 50 years, while walking on a street That when she got to Twenty-Second street in Kansas City in the nighttime, stumbled and Wyandotte she didn't see any barricades over several pieces of iron water pipe and across the street, but she did not look for any. received serious injuries. The street was She did not see any lights there. She was being repaved by the Kramer Construction just turning off of Twenty-Second street when Company under a contract with the city. An the watchman spoke to her. "He just rose action for damages against the city and the up and spoke to me~" For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied January 13, 1922. |