Pringle vs. Dunn and others. (Motion for rehearing.)

its provisions. The mere omission of the clerk to remit the record, the mere accident that the appeal papers remain here notwithstanding the statute, cannot operate to continue the jurisdiction of the court against the words of the statute. We had occasion to examine this provision very fully in considering Esty v. Sheckler, and then came to this conclusion, although it was not necessary to express it in deciding that case. And for the purpose of facilitating motions for rehearing, we then gave general directions to the clerk to retain all appeal papers here for the full time allowed by the statute.

We must therefore hold that the court has lost all jurisdiction over the judgment on this appeal; and that we have no power to grant this motion, because it is made at a term subsequent to the judgment on the appeal, and after the time when the statute permits the record to remain here. If the judgment did injustice to the respondent making this motion, we deeply deplore that his own laches has left us powerless to correct it. The respondent was represented on the argument by two counsel of ability and learning. His case was specially presented orally and in a printed brief. All the points made for him were carefully considered and decided; and we have no doubt correctly. It is now claimed for him that another point should have been made on his behalf, which was overlooked by his counsel, and which rested on facts not appearing in the printed case. If that be so, we regret it on his account and on our own; but we cannot hold ourselves responsible for it. In the decision of causes before us, we must necesssarily depend largely on the presentation of them by counsel. The duties of the bar are almost or quite as essential to the intelligent administration of justice, as the duties of the bench. With all the aid we receive from the bar, we are barely able, by incessant labor, to keep the business of the court from running in arrear. vestigate causes before us. the bar, we pass upon them.

We endeavor faithfully to inIf we find points not raised at But if, as a rule, we should de

Pringle vs. Dunn and others. (Motion for rehearing.)

cline all reliance on the investigations of counsel, and assume to wade through all the records coming before us for all possible points arising upon them, and so perform over again the duties of the bar, we should at once so far fail in our own duties as to delay justice, which would sometimes be equivalent to denial of justice. It is in part to save us from this overwhelming labor, that printed cases and briefs are required in every appeal. We must presume, as a rule, that counsel faithfully investigate and present the rights of their clients. And if parties claim to have suffered by mistake or neglect of counsel, and seek redress through the same or other counsel, they must do so with such diligence that they can overtake the jurisdiction of the court in the cause; so that they may be again heard, without overriding the rules of law which go to the peace of society by the final end of litigation. Interest reipublicæ ut sit finis litium. This may be a hard case. It is said that hard cases are apt to temptation to us in this case, if our judgment did the injustice to the respondent imputed to it. But we must administer the law on general principles, and dare not disregard them in hard cases. We have no plenary jurisdiction to bend the law to particular cases, or to administer justice outside of its ordained forms and proceedings, as counsel invoked us to do. All human judgments are fallible, but are none the less final. And it is better that occasionally a hard judgment should be final, than that all judgments following upon litigation should remain open to inquiry whether they be hard or not. In the nervous language of DIXON, C. J.: "If such a practice were tolerated, no one knows where it would end. Parties would never be secure in their rights, and judgments would be of as little account as the course of the wind." Spafford v. Janesville.

make bad law. It is a sore

By the Court. The motion is overruled.

Baker vs. Supervisors of Columbia County.

BAKER VS. SUPERVISORS OF COLUMBIA COUNTY.

TAX CERTIFICATES: STATUTE OF LIMITATIONS. (1) When statute may be pleaded by supervisors, on appeal from their decision. (2) Tax certificates void when cost of revenue stamps included. (3, 4) When statute begins to run as to actions on certificates.

1. Where a claim against a county, barred by the statute of limitations, was rejected by the supervisors without any statement of the grounds of rejection, there was no abuse of discretion in permitting the supervisors to file an answer setting up the statute, on an appeal to the circuit court from their decision.

2. Tax certificates held void because the cost of revenue stamps thereon was included in the amount for which the land was sold.

3. An action on tax certificates issued May 10, 1864, held to have been barred at the expiration of six years years froin that time, by ch. 112, Laws of 1867. A remark in Wolff v. Supervisors, 29 Wis., 79, overruled.

4. Even under secs. 26, 27, ch. 22 of 1859, the period of limitation would begin to run from the discovery of any fact rendering the sale invalid, and would not be suspended by mere error of law. But the acts of 1867 and 1868 fixed the bar at six years from the "date of sale."

APPEAL from the Circuit Court for Columbia County. Baker filed with the county clerk his claim to recover from the county, under ch. 22, Laws of 1859, the amount of certain tax certificates, alleged to be void because each had attached to it a five-cent internal revenue stamp, the cost of which was included in the amount for which the lands were sold. The claim was disallowed by the board of supervisors, but the grounds of such disallowance were not expressed in writing. On appeal to the circuit court, the county, upon leave asked on the first day of the next term, was there allowed to file a formal answer, pleading the statute of limitations in bar of the action. An affidavit of plaintiff's attorney, read in opposition to the motion for leave to file such answer, stated that the board had not rejected the claim because barred by the statute. Upon the trial, by the court alone, plaintiff

Baker vs. Supervisors of Columbia County.

introduced in evidence tax certificates No. 1145, dated May 10, 1864; No. 1245, dated May 9, 1865; No. 743, dated May 8, 1866; No. 758, dated May 8, 1866; No. 615, dated May 14, 1867; No. 505, dated May 12, 1868. All of the certificates were in the form prescribed by law, and each had a five-cent revenue stamp affixed thereto, and it was admitted that the price of the stamp was included in the amount for which the lands were sold. Certificates Nos. 1145, 758, 615 and 505 showed that the lands therein described were bid off by one Edgerton, and the certificates were duly indorsed by him. Certificate No. 743 showed that the land therein described was bid off by one Clark, and the certificate was duly indorsed by him. Certificate No. 1245 showed that the land therein described was sold to the county, and the certificate was duly indorsed by the county treasurer. The date of assignment of the various certificates did not appear. The court found for the plaintiff, and gave judgment for the amount due upon the certificates, with interest; and from this judgment defendant appealed.

J. H. Rogers, district attorney, for appellant:

1. It was not an abuse of discretion for the court to permit appellant to file an answer setting up the statute of limitations, since appellant's counsel used due diligence and availed himself of the first opportunity after the appeal from the board of supervisors. R. S., ch. 125, sec. 38; Tarbox v. Supervisors, 34 Wis., 558; Kennedy v. Waugh, 23 id., 468; Johnson v. Eldred, 13 id., 482. 2. The liability of the county to repay money on an illegal tax certificate accrues at the time the money is paid on such certificate to the county; and unless the holder presents his claim within six years from the date of the certificate, he is barred by the statute of limitations. The presentation of the claim for allowance is the commencement of an action, and the decision of the board disallowing the claim is the answer. Tarbox v. Supervisors, supra. If it could possibly be held, under sec. 26, ch. 22, Laws of 1859,

Baker vs. Supervisors of Columbia County.

that the statute of limitations did not begin to run until the illegality was discovered, that law has since been repealed by sec. 1, ch. 68, Laws of 1870. This last statute says nothing about "discovery of illegality," and hence sec. 17, ch. 138, R. S., would apply. This, then, so far as tax certificates are concerned, would be a new law of limitation, and would apply to all certificates in existence at the date of the passage of the law of 1870, which still had a reasonable time to run before they would be barred.

H. W. Lee, for respondent:

If the circuit court erred in admitting the plea of the statute of limitations, either because it was not supported by any affidavit (Sweet v. Mitchell, 19 Wis., 529), or because it was an abuse of discretion, then this court can not review the questions of law raised by such plea. Fogarty v. Horrigan, 28 Wis., 142. Plaintiff's claim and statements before the board of supervisors become, in fact, his complaint; and in case of an appeal, there can be no hardship in holding that the county should not be allowed to amend its pleadings and proceedings, any more than an individual suitor, except in furtherance of justice and upon equitable terms. Plaintiff is entitled to know at the earliest moment the grounds upon which his claim is rejected. If such rejection be upon technical grounds merely, he may amend during the sitting of the board; and if the board does not at the proper time and place make known its objections to the claim, it can not afterwards be heard to plaintiff's prejudice. 2. Tax certificates can not be affected by statutes passed subsequent to the sale, and before deeds are issued. The sale is a contract with the purchaser, whose rights "are derived from the contract which the law authorized to be made." Robinson v. Howe, 13 Wis., 347. Any legislative act impairing the obligation of that contract would be within the constitutional prohibition.

COLE, J. The circuit court permitted the county to file an