I agree with the result in the foregoing opinion except as it treats of the effect of failure to file proof of service with the county clerk immediately after service made as provided in section 2209, Revised Codes.
I think section 2209, requiring proof of service to be filedimmediately is not mandatory. I think that provision of the statute is optional or permissive only. It gives the purchaser at a tax sale the privilege of filing this proof immediately and if he does so he thereby establishes a permanent record which under the statute, "shall be prima facie evidence of the sufficiency of the notice."
If the purchaser desires to make this permanent record and have available to him the prima facie evidence of the sufficiency of the notice he must then file the proof of service immediately. If he does not desire this permanent record available as prima facie evidence, he need not file any proof of service with the county clerk but of course must file such proof in all cases with the county treasurer before he is entitled to a deed. Sec. 2212, Rev. Codes of 1935.
The statute (sec. 2209) I think, specifies the benefits to be derived by filing this proof immediately and in effect imposes as the only penalty for not doing so the fact that the prima facie record of sufficiency of notice is not available to the purchaser.
The dissenting opinion of Mr. Justice Adair stresses the fact that curative statutes cannot cure jurisdictional matters. I concede that proposition but it has no application here. The majority opinion, so far as it deals with the affidavit of service filed with the county treasurer, is based upon the statutory presumptions that official duty has been regularly performed and that the law has been obeyed. Subds. 15 and 33, sec. 10606, Rev. Codes. Unlike the curative statutes those presumptions are not conclusive but rebuttable. They made a prima facie case casting the burden on the party asserting that the affidavit was not filed to so show.
Furthermore, in my opinion, if there were any merit in the *Page 446 position taken by Mr. Justice Adair we should not under the facts before us declare the tax deed void.
Here it is shown by affidavit that the required affidavit was actually filed with the county treasurer before the tax deed was issued. That proof was not presented to the trial court and hence is properly not a part of the record of the case on appeal. However, I think the affidavit may be resorted to as showing "good cause" under section 8805, Revised Codes, why we should order a new trial or the taking of further evidence in the court below, rather than pronounce the deed void.