(23 Mont. 337)

GRAGE ▼. PAULSON (UNITED SMELTING & REFINING CO., Garnishee).

(Supreme Court of Montana. Nov. 29, 1899.) APPEAL UNDERTAKING AMBIGUITY.

A single undertaking to secure two appeals from two separate orders made at different times after judgment is void for ambiguity, justifying a dismissal of both appeals.

Appeal from district court, Lewis and Clarke county; S. H. McIntire, Judge.

Action by Henry Grage against Tony Paulson, defendant, and the United Smelting & Refining Company, garnishee. On motion to dismiss appeals. Sustained.

J. M. Clements and Chas. J. Geier, for appellant. Toole, Bach & Toole, for respondent.

PER CURIAM. It appears from the record herein that two appeals have been taken from two separate orders made after judgment,-one entered on April 15, and one on June 10, 1899. It further appears that only one undertaking, in the sum of $300, is on file with the clerk of the district court to secure both appeals. A motion is made to dismiss the appeals on the ground that the undertaking is void for ambiguity. The motion must be sustained, upon the authority of Creek v. Waterworks Co., 22 Mont. 327, 56 Pac. 362; Murphy v. Railway Co., 22 Mont. 577, 57 Pac. 278; Copper Co. v. Hickey, 23 Mont. Pac. 866. Let the appeals be dismissed. Dismissed.

(23 Mont. 338)

58

COBBAN V. HINDS, County Treasurer, et al. (Supreme Court of Montana. Nov. 27, 1899.) TAXATION-SALE FOR NONPAYMENT-INJUNCTION-BOARD OF EQUALIZATION.

1. Under Laws 1889, p. 219, § 4, which makes it the duty of a taxpayer to furnish the assessor a list of his property; and section 5, requiring the assessor to value each lot separately; and Laws 1887, p. 82, § 22, which provides that any person aggrieved by any assessment may apply to the board of equalization for the correction thereof,-equity will not enjoin the sale of separate lots assessed in gross, for the collection of the taxes thereon, where complainant does not show that he attempted to have the irregularity corrected by application to the board, or some excuse for not doing so.

59 P.-1

2. Under Pol. Code, §§ 4023-4026, which pro hibit the restraining the sale of property for nonpayment of any tax, except where the tax is illegal or not authorized by law, or where the prop erty is exempt from taxation, the listing of lands to the wrong person is no ground for restraining the tax sale; since, under Id. §§ 3700, 3916, 4014, it is but an irregularity or informality, which, of itself, does not render the tax "illegal or unauthorized."

3. Land should not be relieved of a lien for taxes because the owner did not know of the assessment, and had no opportunity to discharge the taxes, on account of the property being listed in the name of another.

4. The fact that the notice under which a tax sale was threatened was published but three weeks, whereas the statute requires four weeks, does not render the taxes "illegal or unauthorized by law," within Pol. Code, §§ 4023-4026, so as to authorize the enjoining of the collection of such tax.

5. The fact that a county treasurer intends to violate Pol. Code, §§ 3922, 3923, by exposing for sale for the delinquent taxes for 1898 part of lands purchased by the county at the tax sales of 1897, and yet unredeemed, does not entitle the owner of the equity of redemption to an injunction; since section 4026 provides that the remedy before the board of equalization shall supersede the remedy of injunction and all other remedies which might be invoked to prevent a collection of taxes alleged to be irregularly levied or demanded, except in unusual cases, where the remedy thereby provided is inadequate.

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Action by W. F. Cobban against Thomas R. Hinds, treasurer of Silver Bow county, and said county. From a judgment entered on sustaining a demurrer to the complaint, defendants appeal. Reversed.

The plaintiff is the owner of an undivided interest in certain real estate situate in the county of Silver Bow. The defendant treasurer being about to sell said real estate for the amount of the taxes due thereon and delinquent for the years 1890, 1892, 1893, 1894, 1895, 1896, and 1898, the plaintiff brought this action to enjoin him from selling, or offering for sale, the property, or any part thereof, for delinquent taxes for those years. The complaint charges, in substance, that the assessment of the property for 1890 is void because the tracts of land and city lots were not separately assessed or valued, but were assessed in gross, together with other lots

and parcels of land, of which neither the plaintiff nor his predecessor in interest was the owner; that for each year, beginning with 1890 and ending with 1898, the real estate was assessed to persons other than the true owners, and that neither the plaintiff nor his predecessor in interest had notice of or opportunity to contest the assessment, or notice to pay the taxes; that in 1892 the treasurer of the county sold all of the property to the county of Silver Bow in satisfaction of the taxes delinquent for the year 1891, and that in 1898 the defendant treasurer sold a portion of the property to the county of Silver Bow for the delinquent taxes of the year 1897, and that the property has never been redeemed from either sale; that at the time of the assessment of 1890 the statutes of Montana provided that notice of the sale by the treasurer for delinquent taxes should be published once a week for four weeks, the first of which publications should be at least four weeks before the day appointed for the sale, whereas the notice under which the treasurer now threatens to sell the property is but a three-weeks notice. A demurrer for insufficiency was overruled, and, the defendants refusing to plead further, a judgment was entered, in accordance with the prayer of the complaint, perpetually enjoining the defendant treasurer from selling, or attempting to sell, or from offering for sale, the property, or any part thereof, for the taxes delinquent for any of the years mentioned. The defendants appeal from the judgment.

C. B. Nolan, Atty. Gen., C. P. Connolly, and R. L. Clinton, for appellants. J. K. Mac donald, C. D. Tillinghast, Robt. McBride, and F. T. McBride, for respondent.

PIGOTT, J. (after stating the facts). 1. The contention of the plaintiff, to the effect that the assessment for 1890 was void because made upon several parcels of land in gross, and without separate valuation, has been considered in the late case of Deloughrey v. Hinds, 23 Mont. 58 Pac. 709, and held untenable. The facts pleaded in the case at bar are not to be distinguished, upon principle, from those presented in the Deloughrey Case, the doctrines whereof we affirm and again apply. The plaintiff, and those under whom he claims, were conclusively charged with knowledge of the time and place, appointed by law, when and where the board of equalization would meet; they knew that the lands owned by them would be assessed for the year 1890; and no excuse is offered for their omission to seek at the hands of the board a correction of the informality or irregularity of which they now complain.

2. The plaintiff insists that the assessments

respective assessments were complete answer to the cont section 46 of "An act to pro of taxes and assessment o proved September 14, 1887, provided: "When any lands offered for sale for any taxe necessary to sell the same of any person or persons; a land or town lot for taxes on account of its having bee assessment roll in any other of the rightful owner or char but such land must in other ciently described on the tax it, and the taxes for which and unpaid at the time of 1891 there was passed "A revenue," approved March Section 13 of this act, afte the assessor must assess pro son by whom it was owne in whose possession or con ceeds to declare that "no mis of the owner, or supposed property, renders the asses: valid." Section 148 of the "When land is sold for ta posed as the property of a] no misnomer of the owner, er, or other mistake relati ship thereof, affects the s void or voidable,"-a pa When land is sold, for ta posed thereon, as the prope lar person (or when land is erty of a particular perso rectly imposed upon the la of the owner, or supposed mistake relating to the o affects the sale or renders it And section 197 provides ment or act relating to ass tion of taxes is illegal on mality, nor because the sa pleted within the time r These provisions of sections of the act of 1891 were inc Political Code of 1895, and a 3700, 3916, and 4014. Und it is plain that the listing of of a person other than the irregularity or informality does not avoid the assessme tax illegal or unauthorized. owner of the real propert poses of taxation except pe tion of a personal liability, important. Support for the in Landregan v. Peppin. 8€ 859; Haight v. Mayor, etc N. E. 883; Merrick v. H Trust Co. v. Weber, 96 III. : thews, 40 N. J. Law, 268; ard, 85 Mich. 18, 48 N. W.