Lawrence v. Booth
Before: Niles
Synopsis
Cost of Publishing Summons. — In an action brought by the State, under the Act of 1868, for the sale of lands belonging to the State, to annul a certificate of purchase for failure to make payment, if summons is published, the cost of publishing the same must be taxed in the costs, and a judgment rendered against the defendant therefor.
Idem.—If such judgment cannot be collected by execution out of the defendant’s property, and if the lands are school lands, the cost of publication must be paid by the State out of the General Fund.
Idem. — In snch case, the Board of Examiners must audit the claim for publishing summons at the amount taxed by the District Court, even if no specific appropriation has been made by the Legislature therefor.
By the Court, Niles, J.: Application for a mandamus to compel the State Board of Examiners to allow the claim of the petitioner for the costs [189]of publication of summons in suits brought to foreclose the interests of defaulting purchasers of school land, to the full amount taxed by the District Court.
The case turns upon the construction of the sixty-seventh section of the Act to provide “for the management and sale of the lands belonging to the State.” (Stats. 1867-8, p. 527.) In prescribing the mode of procedure against a defaulting purchaser of State lands, it provides for the taxation by the Court against the defendant of all expenses and cost of the proceedings, and the issuance of execution therefor. As we construe the section, the cost of publication of summons is to be included in the taxed costs, and, therefore, in the judgment entered against the defendant. The entire amount of the judgment is to be collected of the defendant by execution, if possible; but if sufficient property of the defendant be not found, and the execution be returned unsatisfied, and if the lands described be school lands, the cost of publication shall become a charge against the State, and shall be paid out of the General Fund.
It is claimed by the respondents that the judgment of the District Court is not conclusive as regards the amount allowed for costs of publication, but that it is the subject of examination by the Board of Examiners, and may be reduced or disallowed as other claims against the State. We do not think that the powers of the Board extend so far. Aside from these provisions of the statute, it would seem that the State, which was a party to the suits in which the judgments were rendered, and through its specially authorized agent procured their rendition, ought to be concluded by their terms, equally with the defendant. At all events, the requirement of the statute, as we construe it, is positive, that the cost of publication, as taxed by the Court, shall be paid by the State. This leaves to the auditing officers no discretion as to the amount for which the claim shall be allowed. It must still pass through the hands of the Board of Exam[190]iners, in the ordinary routine of business, but the amount allowed can be no other than that fixed by the judgment of the Court.
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