
    Holmes, Appellant, v. Bowen et al., Appellees.
    
      (Decided January 10, 1938.)
    
      Mr. Joseph T. Harrison, for appellant.
    
      Mr. Dudley M. Outcalt, Mr. Walter M. Locke, Mr.. Stewart S. Cooper, and Mr. J. O. Gusweiler, for appellees.
   Matthews, J.

This was instituted as an ordinary action to foreclose a mortgage upon real estate. The mortgagor and the county treasurer were the original defendants. It proceeded in the usual manner and a decree in foreclosure was entered on February 16, 1934. The mortgagor not having paid the amount found due, an order of sale was issued, which was returned on April 7, 1934, showing that the plaintiff had purchased the property. No order confirming the sale was entered then or since.

Nothing further was done in the case until April 5, 1937, when the plaintiff moved that the successor county treasurer, the village of Deer Park, and the county commissioners be made parties defendant. This motion was granted. Two days later the county auditor, also on motion of the plaintiff, was made a party defendant.

On May 12, 1937, the village of Deer Park filed an answer asserting a first lien for assessments, and denying all allegations of the petition.

On June 11, 1937, the plaintiff filed a pleading denominated “Supplemental Petition,” in which she alleged that she had not authorized the purchase of the property, and that there were confiscatory taxes and assessments charged against the property, which, if held valid, would render the property valueless to her. She expressed a willingness to take the property if the court would “modify the situation by fixing said taxes and assessments in a sum which together with the sum which is due her does not exceed the fair market value of said lots.” She prayed that the taxes and assessments be enjoined in whole or in part.

On July 16, 1937, the county treasurer filed an answer asserting a lien for taxes and assessments and praying that the treasurer be paid first for delinquent taxes, “and if said taxes are not completely paid they shall remain a lien on said property.” -

On these pleadings the cause came on for hearing on July 19,1937, and the court then made a separate finding of facts and conclusions of law, the latter being “that the plaintiff is not entitled to an injunction against the whole or any part of said assessments” and “that the supplemental petition be and hereby is dismissed and that she pay the costs.”

Notice of appeal on questions of law and fact was duly filed and an appeal bond given.

The case comes before this court upon a defendant’s motion to dismiss the appeal.

In passing upon this motion, we are not presented with the necessity of determining the exact extent of the jurisdiction of this court conferred by this appeal, although it is clear that an action for an injunction is a chancery case, in which an appeal on law and fact may be taken to this court.

Nor are we presented at this.time with any issue as to the correctness of the procedure adopted in raising the issue of the validity of the taxes and assessments. No objection on that ground was made in the Court of Common Pleas, and none has been made here.

(Decided April 14, 1938.)

And, of course, the merits of the controversy are not involved in this motion to disfoiss the appeal.

The only question is whether the procedural steps have been taken to invest this court with such jurisdiction of this case as has been conferred upon it by the Constitution to hear cases of this class that are properly brought before it.

We find that the procedural requirements have been complied with, and the motion is, therefore, overruled.

Motion overruled.

Ross, P. J., and Hamilton, J., concur.

Matthews, J.

The court having heretofore overruled the appellees’ motion to dismiss, the action now comes on for final hearing.

The status of the appellant is that of a mortgagee seeking a foreclosure of her mortgage and in the same action asking an injunction against the public officials restraining them from collecting certain taxes and assessments charged against the mortgaged premises in a municipality.

No claim is made of any procedural defect in the levying of these taxes and assessments.

The sole claim is that they are excessive, in that they exceed the value of the property and, of course, more than one-third of its value.

Predicating her assertion upon this factual basis, she asserts that to sustain these taxes and assessments would be sanctioning confiscation and the taking of her property without due process of law.

Now is that conclusion justified?

At the outset it should be borne in mind that the contention is not sustained by a mere showing of a taking. Nor is it sustained by a supplemental showing that the taking was unjust. If the forms of law have been followed, that is, if due process of law has been accorded, the taking cannot be avoided by mere proof of error or injustice.

If a judgment has been rendered by a court and that judgment has become final, it may have the effect of unjustly or erroneously taking the property of one person and bestowing it upon another; and that result can not be avoided by a claim of spoliation in another action.

So where jurisdiction rests in administrative officers, if they proceed according to law, their action can not be collaterally nullified by a claim that property has been taken without due process of law in the absence of proof that the administrative officers exceeded their authority by acting arbitrarily or capriciously. If it appears that there was substantial evidence to support the conclusion of the administrative officers, the courts have no jurisdiction to disturb their finding even though the court should conclude that it was against the greater weight of the evidence. The administrative proceedings constitute due process of law within the jurisdiction of the administrative board, as do the proceedings of a court within its jurisdiction.

In the case at bar we have no evidence before us as to the proceedings resulting in the levy of the taxes and assessments. It may be that every requirement of the law was complied with. In the absence of proof, we indulge the presumption that the law was followed.

The only suggestion of non-compliance is that no notice was given to the mortgagee. As to the general taxes, no personal notice upon any one was required. As to the special assessments, we presume, in the absence of evidence, that the owner of the legal title was notified. The statute in terms requires the notice to be served upon the “owner” and that is all either the statute or the Constitution requires, so far as we are advised. The mortgagee knew when she took the mortgage that the law authorized an assessment upon notice to the mortgagor, who was the owner of the legal title. In 25 Ruling Case Law, Section 77, at page-165, it is said:

“Mortgagees and other lienholders, or persons simply having such interest in the property that they may possibly be affected by the enforcement of a special assessment against it, are not entitled to notice and an opportunity to be heard in assessment proceedings. The reason for this is that a mortgagee takes his lien subject to the rights of. the state, or of any municipal authority to which the power is properly delegated, to impose on the property in accordance with law not only general taxes, but special assessments. He is not the owner of the property, but a lienholder merely; and the fact that incidentally the value of the lien may be impaired by the enforcement against the property of general or special taxes does not give him a constitutional right to be notified of the proceedings under which such taxes are imposed; the possible impairment of his lien does not amount in such cases to a taking of property without due process of law.”

For these reasons, we conclude that the appellant has failed to prove a ground for an injunction against enforcing the tax and assessment liens and a decree to that effect and dismissing the supplemental petition in that respect may be entered.

Decree accordingly.

Ross, P. J., and Hamilton, J., concur.  