Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-01-22
DOUBT THROWN On TAX DEEDS
Supreme Court Gives Chance to Owners in
Case Of De,rss BY Default
DECISION IN CASE OF ANNIE 8. HOMER
HiEh Court Criticises wording of
scavenEer sale Act as Something
Like the Clouds Hamlet
thought Were whales.

The Nebraska supreme court at its last
sitting handed down an opinion in which
II held that the judgment entered in the
scavengcr tax suit on default is a mere
ministerial az. Consequently those who
failed to file their answers in the scavenger
suit before the default decree was entered
will still have their day in court and a
right 10 contest their taxes. This decision
is the result Of an appeal In the scavenger
suit taken by Attorney Charles Battellc,
representing Annie r. Homer, a resident of
Europe.
The facts in the appeal were that after
the default decree had been entered the
property owner learned of the Same for
the first time and promptly applied to the
district court for leave to open the decree
and be allowed to defend. This application
was denied The supreme court sustained
the lower court in overrullng the applica-
ton to open the decree. but says that a
suit may be brought to cancel the void
taxes practically as though the scavenger
law did not exist.
View of supreme Court.
The court, in referring to the provisions
of the law, says: THE most cursory ex-
animation of these provisions Of the statute
shows that the proceedings directed to be
taken by the clerk of the district court
In marking the word 'defaulted' opposite
each tract and the decree which II has
provided, the Judge Of the district court
must enter in accordance with the specific
directions of the law are merely admins
trative in their nature. We know of no
judicial functions which have been dele
gated to the clerk of the district court
sufficient to permit him to declare ju-
diciany that a certain party has made
default Nor can we see that a proceeding
whereby a Judge is deprived of all dscre-
ton. of all judicial functions. and is merely
required 10 make an entry in accordance
with certain specified formalities as to the
making OF such entry, can be in any wise
the rendition Of judgment or decree. The
provisions specify that the decree must be
for the amount shown in the petition.
Hamlet's whales in Comparison.
ut is true that the legislature has seen
At TO designate these proceedings by the
Technology which properly appertains only
to the exercise of the judicial and deter
mining faculty but such an order is no
more a decree sor judgment in the legal
sense than the clouds which Hamlet
thought looked like whales were living
denizens of the deep Had the owner of
tne property SOUGHT 10 De TedCntu inter-
posed an answer, the law provides that
he may do, the proceedings would then
have become adversary and the exercise
OF the judicial powers of the court would
be called into existence for the purpose of
determining an ISSUE
The result OF this decision will be, ac-
cording to attorneys. that those who have
purchased the taxes at the scavenger suit,
where an answer has not been filed by
the owner Of the property, may not be able
% obtain a valid tax deed. for the reason
that the owner would still have the right
TO contest the taxes, and II the same were
void the deed would be defeated,
This decision of the supreme court is
considered a very important one, affecting
not only Douglas county. but all other
counties In the state. 1t was not filed by
the court until the same had been reargued.
The first opinion by the commissioners was
prepared last fall, and the supreme court
withheld the same and ordered a reargu-
ment before filing the opinion.