BATES et al.
Appeal from Superior Court, Pinal County; Levi S. Udall, Judge.
Theodore G. McKesson, Thomas P. Riordan and Carl W. Divelbiss, all of Phoenix, for appellants.
Tom Fulbright, of Florence, and Kramer, Morrison, Roche & Perry, of Phoenix, for appellee.
Farley, Superior Judge. Stanford, C. J., and LaPrade, J., concurring. Justice Levi S. Udall having disqualified himself as he was trial judge, the Honorable Gordon Farley, Judge of Superior Court Santa Cruz County, was called to sit in his stead.
Farley, Superior Judge.
[67 Ariz. 152] This is an appeal from an order sustaining defendant's motion to dismiss the second amended complaint and from the judgment entered thereon after plaintiffs elected to stand on the second amended complaint. The action was instituted on September 2, 1944, by the plaintiff, Frank A. Bates, as a stockholder in his own behalf and for other stockholders, and by Victor J. Hermel, as the Minnesota Receiver of the American Ore Corporation. The prayer of the complaint [67 Ariz. 153] asked for the appointment of a receiver in Arizona to take possession of the mining property herein involved; to set aside the tax sale and deed to said property; to declare the judgment a nullity in Cause No. 6738 wherein title to said property was quieted in defendant; and to quiet title in plaintiffs to said premises.
The defendant acquired possession of the property by virtue of a tax deed issued to the State of Arizona and by a subsequent conveyance by the State to defendant. On September 2, 1941, defendant Mitchell filed Cause No. 6738 to quiet the title to the property, based upon his tax title. The defendants in that action were the American Ore Corporation; the State of Arizona; the County of Pinal; and Ethel Griffin, County Treasurer. Service of summons was had upon Wayne Hubbs as statutory agent of the American Ore Corporation, although the corporation had had no legal existence since January 10, 1935, when its charter was revoked by order of the Arizona Corporation Commission for failure to pay the annual registration fees and file its annual report. Judgment was entered in favor of the defendant (plaintiff in that action) on September 29, 1941, quieting his title to the property.
Plaintiffs contend that the judgment in Cause No. 6738 is null and void for want of jurisdiction because (1) the tax sale was void, and (2) service upon the American Ore Corporation was inadequate to afford the court jurisdiction.
Attention has been called to irregularities in the tax sale which plaintiffs urged affected the court's jurisdiction. In support of that position the cases of State v. Miami Trust, 61 Ariz. 499, 152 P.2d 131, and Kincannon v. Irwin, 64 Ariz. 307, 169 P.2d 861, are cited. Those cases hold in substance that the notice of sale and the date of sale must conform to the statute and a sale not made in compliance with the statute is void because of lack of jurisdiction of the officer making the sale.
A distinction must be noted, however, in the use of the term "jurisdiction" as applied to the acts of administrative officials and as applied to the authority of courts to hear and determine actions. In no sense is the application of the term "Jurisdiction" in each case synonymous. Courts may and occasionally do determine cases based upon the erroneous exercise of "jurisdiction" or authority by administrative officials, and such determinations become res judicata. As was said in the case of Varnes v. White, 40 Ariz. 427, 12 P.2d 870, 872, "A judgment cannot be collaterally impeached because it was based on a mistake of law, any more than if based on a state of facts." In other words, the jurisdiction of a trial court is not ordinarily derived from the authority or absence thereof of an administrative official whose acts are the basis for the litigation.
"The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry; not whether its conclusion in [67 Ariz. 154] the course of it is right or wrong. Foltz v. Railway Co.,60 F. 316, 8 C.C.A. 635; Boar ...