State ex rel. Weide v. District Court Second Judicial Dist. , 56 Minn. 56 ( 1893 )

Yanderburgh, J.

Several objections to the assessment and judgment in question are raised in this court which were evidently not raised or considered in the District Court. The motion there made was to vacate and set aside the judgment entered against the real property specially described in tbe notice, on tbe ground that the-same was ordered through mistake and fraud.

It is evident that the claim that it was entered through fraud Avas abandoned, and the court failed to find that it was entered by mistake, and therefore denied the application. It is true that Mrs. Weide, in a separate notice, more specifically states that the judgment was ordered through mistake, no notice of the intention to-do so having been given to her; also, that by mistake the assessment district was defined without notice or hearing, and that the-assessment was made upon “the property in gross, and not in separate pieces or parcels.” It is clear that objections to the assessment must have been seasonably taken in order to be available, and unless so-taken, and a reassessment ordered, the judgment would follow the assessment; and the judgment is not void or to be set aside because-several adjoining lots belonging to the same party are assessed together. That is an error that must be seasonably pointed out and objected to. It is also urged on the argument in this court that the-judgment is void on its face, on the ground of the imperfect description of the property. Whether the particular objection brings the case within the rule in Gilfillan v. Hobart, 35 Minn. 187, (28 N. W. 222,) we are not called upon to determine, as the point was not raised in the court below, and was not embraced -within the grounds of the motion stated. The defect, doubtless, may be corrected on application to the court, if there has been no sale.

It all comes down, then, to the question whether the judgment A\ras ordered by mistake or oversight, in face of the objections on file in the case. We think this is not made to appear. In respect to objections to the assessment, the affidavits of Mrs. Weide and her husband both show that “all the facts relative to the defects and mistakes in making said assessments” came to her knowledge within sixty days prior to this motion. It is clear, therefore, that no such objections were filed before the judgment.

It is obvious that the chief ground relied on, when the motion-papers were prepared, was the supposed absence or omission of the-order for judgment required in such cases. But it turned out that such order, which had been mislaid, was in fact made, and was produced at the hearing.

As respects the notice of intention to apply for judgment, the relator must have had such notice, because, uj)on her own showing, she appeared, and filed objections; and, as to whether the relator’s rights were subsequently prejudiced by the continuance of the hearing, the evidence can hardly be considered such as to warrant this court to set aside the decision of the trial judge on this ground. If relator appeared in person, and not by attorney, she was bound to take notice of the disposition made of the case by the court. If she had an attorney, she is bound by his acts in consenting to the ■continuance. Nor did the matter come legitimately under the head ■of mistake, which was the matter considered by the court.

Order affirmed.

Buck, J., took no part.

(Opinion published 57 N. W. Rep. 319.)

Application for reargument denied January 10, 1894.