People v. Frisbie

By the Court, Rhodes, J. Suit was brought against the defendant and certain real estate, to recover the delinquent taxes which had been assessed upon the real estate to said Frisbie, for the year 1861, in Solano County.

The action was commenced and prosecuted to judgment, under the General Revenue Act of 1861. Frisbie answered the-complaint, denying that the land was subject to taxation, or that he was indebted in any sum for State or county taxes, or that the land was in Solano County, and alleging that the lands were in Napa County, where they had been duly assessed for taxes for 1861, and that he had paid the taxes for that year, in that county. The plaintiffs demurred to the answer, on the ground that it did not conform to the provisions of section forty-two of that Act, and the demurrer was sustained, and the defendant declining to answer, judgment was rendered for the plaintiff. The defendant appealed and the judgment was affirmed. The remittitur was filed in the Court below on the 7th day of July, 1863. On the 27th of April, 1863, an Act was passed, which took effect from its passage, amending section fortyrtwo of the Revenue Act of 1861, by adding another defense, viz: “Fourth. That the land is situate in [138]and has been duly assessed in another county and the taxes thereon paid,” and providing that in pending suits the fourth ground of defense may be interposed, and that if the suit has proceeded to judgment, which remains wholly unsatisfied, the defendant may have the judgment reopened for the purpose of setting up the defense mentioned in the fourth subdivision, and he was then entitled by the Act, to avail himself of the defense, as fully as in cases thereafter to be commenced. The defendant, on the 20th day of August, 1863, moved that the judgment be reopened as provided in said Act, and the Court having set the same for hearing on the first day of the ensuing term for Napa' County, and the defendant having filed his petition, setting up that the land was situated in Napa County, that it had been duly assessed for taxation for the year 1861 in that county, and that he had paid the taxes thereon, the Court ordered the judgment to be reopened. From this order plaintiff appeals.

The only error assigned by appellants is that the Court erred in ordering the judgment to be opened, and allowing the. respondent to interpose a further defense.

The appellants now raise the objection that the respondent did not pursue the remedy afforded by the amendatory Act of 1863, with due diligence. The" statute does not prescribe the time within which the motion must be made; and if the respondent was governed in this respect by the provisions of the Practice Act, the question of diligence was for the Court below, in the exercise of a sound discretion, and we would not be justified in reversing its action, except in case of an abuse of discretion. Besides this, the appellants failed to make the objection in the Court below.