Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.
Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.
Suit to quiet title by Clyde E. Lewis against K. T. Palmer and Elizabeth Palmer, his wife. Defendants filed a cross-complaint. From the judgment, the plaintiff appeals.
Clyde E. Lewis, plaintiff (appellant), brought suit on April 29, 1946, against K. T. Palmer et ux., defendants (appellees), to quiet title to a half-section of land lying in Maricopa County, title to which plaintiff had acquired under the homestead laws. Defendants filed an answer and cross-complaint wherein they alleged that the property involved was regularly sold for delinquent taxes for the years 1933 to 1937, inclusive, Treasurer's Certificate of Purchase having issued in the first instance to the State of Arizona but later was purchased by defendant K. T. Palmer from the State, the latter assigning and transferring said certificate to him.
The answer further alleged that defendants had, on May 19, 1943, secured a judgment in the Superior Court of Maricopa County in civil cause No. 52001, entitled K. T. Palmer, Plaintiff, v. Clyde E. Lewis, Adah I. Lewis, his wife, State of Arizona, The County of Maricopa and W. H. Linville
as County Treasurer, Defendants, foreclosing any right of the defendants in that case to redeem said property from said tax sales, which judgment was entered after personal service upon Lewis et ux., they having failed to appear or defend in said cause; and that by reason of the foregoing the present plaintiff (his wife is now deceased) was now barred and estopped from claiming any right, title, or interest in or to said real property.
Defendants further asked, by a cross-complaint, that their title to said property be quieted as against plaintiff. To this pleading plaintiff answered by alleging in effect that the Treasurer's Certificate of Purchase, aforesaid, "was issued illegally for the reason that the plaintiff had properly claimed and was duly allowed his Veteran's Tax Exemption for taxes on said real property for the said years and that the judgment rendered * * * is invalid and void as the court had no jurisdiction of said cause of action". (Emphasis supplied.)
The defendants then moved for summary judgment based upon the pleadings, the deposition of plaintiff Lewis and the record in civil cause No. 52001. The trial court granted the motion and from the formal judgment entered thereon plaintiff has appealed to this court. The sole assignment of error is that the court was wrong in granting the defendants' motion for summary judgment.
The law is that the procedure for summary judgment may be availed of to bring an action to prompt conclusion when the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Section 21-1212, A.C.A.1939; Manor v. Barry, 62 Ariz. 122, 154 P.2d 374.
The plaintiff contends in his brief that he, as a veteran entitled to a tax exemption under Art. 9, Sec. 2, Constitution of Arizona, occupies the position of one who has paid the taxes for which this property was sold. Furthermore, that where property exempt from taxation is assessed and a tax levied thereon that a subsequent sale for nonpayment of such taxes will pass no title. He also urges that the statutory provision setting forth proceedings for foreclosure of right to redeem from tax sale, contained in Sections 73-831 and 73-832, A.C.A.1939, have no application to him and that he may, nevertheless, thereafter bring suit to recover his property at any time within the period permitted by the Statute of Limitations.
The trial court evidently granted defendant's motion for summary judgment upon the basis of the doctrine of res judicata, i. e. that the present suit was a collateral attack upon the judgment entered in Cause No. 52001, supra. In ...