
    CRANMER, Appellant, v. CHRISTIAN et al, Respondents.
    (166 N. W. 1086.)
    (File No. 4218.
    Opinion filed March 26, 1918.)
    1. Appeals — Error—Evidence, Sufficiency — Review—No Motion for New Trial, Effect.
    No motion for neiw trial having been made, sufficiency of evidence is not before Supreme Court for review.
    2. Taxation — Special Assessment Deed From City Treasurer, Validity of, Under Statute — Deed as Evidence, Competency.
    A city treasurer was without power or authority to issue a special assessment deed upon sale for delinquent assessment for street improvements, and such deed was void of any evidentiary force or effect, and was wholly incompetent as evidence; construing Laws 1911, Ch. 243, (amending Rev. Pol. Code, Sec. 1265, as amended by Laws 1909, Ch. 201) providing for collection by county treasurer of city and school taxes, etc., and for sale of city lots in payment of delinquent special assessments thereon by county treasure^ etc.,. and for redemption from such sales within a specified time thereafter, and for notice of issuance of tax deed as in other cases of tax sales.
    Appeal from Circuit Court, Brown Ooumty. Hon. Thomas L. Bouck, Judge.
    Action by Emma A. Oranmer, against D. E. Christian and others, to quiet title to a diity lot, amid for 'cancelation of a special assessment deed and lien. From a judgment for defendant, and from an odder denying a new trial, plaintiff appeals.
    Reversed.
    
      S. H. Crammer, ■ and Amos N. Goodman, for Appellant. ■
    
      Williamson & Williamson, for Respondent.
    (2) To point two of -the opinion, Appelant cited: Kirby v. Waitterman, 17 S. D. 314, 96 N. W. 129.
   SMITH, J.

Action to quiiet ‘title to a lot in .the city of Aberdeen and to cancel a purported special assessment deed and special assessment lien. Prior to the trial, Howard and Hedger were eliminated as defendants, leaving Christian as. the sole defendant. At the beginning of the 'action no special assessment dead had issued!, -but before the trial defendant Christian was permitted to file ai supplemental anlswer, alleging the issuance of a special assessment tlleed subsequent to .the -commencement of the action. Elindings and judgment for the defendant. Plaintiff -appeals' ,-and', among -other assignments- o-f error, alleges insufficiency of the evidence to sustain tine findings and judgment.

There wla's no motion fio'r a new trial; -consequently tihe sufficiency of the evidence is not before us for review. Appellant’s .record, however, purports to present .a set'bl-'eld record, with specification's and 'assignments of error, u-picin which a 'ruling of the trial -court in receiving in -evidence the .alleged special assessment deed issued upon the 'tax -s-ale may be reviewed. The findings and) judgment of the trial -court must have been based wholly upon this evidence, and' for that reason its competency or «.'Competency is decisive of the question of prejudice in such ruling. By its findings and judgment the trial -court in effect held tibe special .assessment deed void', but required; thie plaintiff to pay tire amount of thie special assessment as -a condition to granting the relief .prayed for, and! decreed that, unless such -paymemt be made within a time named, .plaintiff's- action should be dismissed with prejudice upon the merits.

Hue special assessment was attempted to- be made in, a proceeding by the -Ciily council requiring the construction of a curb in front of plaintiff's property. Plaintiff's, lot abutted upon a public street in the -city of Aberdeen anld was- subject to- special assessments for street and sidewalk improvements. The- trial court fo-unld that in December, 1909, the city council -of said city, deeming fitt .mecelssary to curb -the 'street where tire same abutted upon said pirep-erlty, proceeded to -order the improvement; that said curb, not -being constructed1 by the owner, w-a-s constructed by the city at the ciolslt of $58.05, and that such proceedings were thereafter had that s-ai'd property was. sold for 'delinquent assessment ,wa-s bid in b}' the defenidlant Christian, and, not having been redeemed, the special assessment deed -offered -in evidence was issued by the -cilty treasurer on September 5, 1914. At the •lorial, plalilnibiff -offered competent and sufficient evidence of her title to the property and- rested. Whereupon defendant -offered in evidence the .special assessment deed above mentioned! add also .rested. This- -spedial as-s-esment deed) contained) recitals which constitute the -only evidence of the -special assessment, purporting to have been made Dec. 13, 1909, non payment of assessment and -sale of the property on March 4, 1912, and1 on- its face purported to be issued by tire city treasurer of Aberdeen o-n September 5, 19-14. This deed was received- in evidence over proper objections o-n the part of appellant, which ruling- is assigned a's erro-r.

This ruling was clearfy -erroneous' and prejudicial. The city treasurer was -absolutely without power 01- authority to issue a special assessment deed- upon a sale for a delinquent special -assessment for street improvements in any case. Chapter 243, Daw's) 1911. The -deed wlas therefore void of -any evidentiary force or effect whatever, and was wholly incompetent -as evidence. By way of rebuttal, plaintiff -offered' certain- -evidence tending to show -illegality -of ‘the -special assessment; but the effect of such--evidence is not material- upon -this appeal and requires n)o- further consideration). 'In view of the fact that a new trial m-u-st be awarded in this -case, w-e -deem, it appropriate to direct the attention of 'the trial -oo-urt to the provisions- of -chapter 20, Laws ■of 1913, providing for the reassessment for local improvements where an assessment has been 'declared void, and to tire decision of this court in Freese v. City of Pierre, 37 S. D. 433, 158 N. W. 1013.

The judgment of the 'trial! court is -reversed.  