Johnson v. Hunter

• Decision Date: 11 January 1904
• Docket Number: 110.
• Citation: 127 F. 219
• Parties: JOHNSON et al. v. HUNTER et al.
• Court: U.S. District Court — Eastern District of Arkansas

127 F. 219

JOHNSON et al. v. HUNTER et al.

No. 110.

United States Circuit Court, E.D. Arkansas, Eastern Division.

January 11, 1904

Randolph & Randolph, for plaintiffs.

L. P Berry and A. B. Shafer, for defendants.

TRIEBER District Judge.

This is an action to cancel certain deeds of the defendants to the lands in controversy as clouds on complainants' title thereto, and also a cross-bill on the part of the defendant to confirm their title. The action was first instituted in the chancery court of Crittenden county, Ark., and by the defendants removed to this court on account of a diversity of citizenship. The complainants sue as sole heirs at law of A H. Johnson, who departed this life intestate on December 4 1899. The allegations of the bill and the proofs establish the fact that A. H. Johnson acquired a perfect title to the lands by mesne conveyances running back to the original patentee, and the defendants' claim of title is based on purchases made at judicial sales under and by virtue of decrees rendered by the chancery court of Crittenden county in actions brought by the board of directors of the St. Francis Levee District, who, for convenience, will be referred to herein as the 'Levee Board,' to enforce the collection of levee taxes alleged to have been due on these lands, and for the nonpayment of which the chancery court directed the lands to be sold by a commissioner in chancery appointed by the court for that purpose. Johnson, being a nonresident of the state, was brought into court by publication, but failed to appear. The deeds under which defendants claim show the rendition of the decrees, the sales by the commissioner and purchase by the defendants, a confirmation of the sales by the court, and payment of the purchase money, and are in all respects valid on their face. These purchases were made by the defendant Charles W. Hunter, who thereupon, for a valuable consideration, conveyed an undivided interest in them to his codefendants. The prayer for relief asks for a cancellation of these deeds upon repayment by the complainants of the purchase money paid by Hunter to the commissioner in chancery, with the interest thereon, a tender of which was duly made by them; and also that the decrees on which they are based, and all proceedings in the suit in which they were rendered, may be declared void and of no effect.

The lands in controversy were purchased under decrees in two suits, but practically the validity of defendants' title under both decrees is attacked for the same reasons, and therefore will be treated together, as if there had been only one suit instituted by the levee board, except as to one or two matters in which they differ. As the proceedings in the chancery court which resulted in the sale of these lands were had during the lifetime of plaintiffs' ancestor, this cause must be treated in the same manner as if he were alive, and had instituted this proceeding. If the decrees were valid as against him, complainants, as his heirs at law, are concluded in the same manner as he would be if alive. Therefore all allegations and proofs as to want of notice to complainants are immaterial, and need not be considered.

Counsel for the complainants in the argument strenuously insisted that this is a direct proceeding to impeach the decrees of the chancery court, and not merely a collateral attack upon them. This contention cannot be sustained, as the levee board, which was the sole complainant in those actions, is not made a party to this proceeding. Harwood v. Railroad Company, 17 Wall. 78, 81, 21 L.Ed. 558, is direct in point.

In that case Mr. Justice Hunt, in delivering the opinion of the court, said:

'Mr. Carlisle, the plaintiff in the suit in which the decree is sought to be vacated, is not a party to this proceeding. * * * This is against authority and principle. No case is cited to justify it, and it is believed that none can be found. The judgments of courts of record would be scarcely worth obtaining if they could be thus lightly thrown aside. The absence of the plaintiff in the original suit is a fatal defect.'

See, also, McCarter v. Neil, 50 Ark. 188, 6 S.W. 731.

The bill must therefore be treated as a collateral attack on the decrees of the chancery court, and subject to the principles of law governing such proceedings. Citations of authorities to maintain that a decree of a superior court of general jurisdiction cannot be attacked unless it is shown that the court is without jurisdiction either of the parties or the subject-matter, or that its decree or judgment was in excess of its jurisdiction, are unnecessary, as that is elementary. The bill is not only very voluminous but sets up several grounds in its attack on the decree under which the sales were made which are too frivolous to require attention. In disposing of this case the court will only pass upon those issues which have some little merit in them.

It is claimed that the acts of the Legislature of Arkansas under which these proceedings were had are in conflict with the Constitution of the state of Arkansas, as well as the fourteenth amendment to the Constitution of the United States, in the following matters:

First. That the act does not provide for a reasonable notice of the pendency of the suit to defendants who are nonresidents of the state. The act provides that in proceedings to enforce the collection of taxes due on lands owned by nonresidents of the county in which they are situate, or in the case of nonresidents of the state, notice of the pendency of the suit shall be given by a publication weekly for four weeks prior to the day of the term of court on which final judgment may be entered for the sale of said lands, in some newspaper published in the county where such suit may be pending; and such suit shall stand for trial at the first term of the court after the complaint may be filed, if said four weeks, in the case of a nonresident or unknown defendant as aforesaid, shall expire either before the first day of the term or during the term of court to which said suits are brought respectively, unless a continuance is granted for good cause shown, within the discretion of the court. The act also provides that 'the proceedings and judgment shall be in the nature of proceedings in rem. ' Acts Ark. 1895, p. 88, No. 71.

Learned counsel for the complainants have argued very fully the distinction between proceedings in rem and proceedings in the nature of proceedings in rem. So far as the determination of this cause is concerned, I can conceive of no necessity to go into this matter. It is sufficient that the statutes of Arkansas provide that the liens granted by law against lands within the levee district for the enforcement of the taxes duly levied in conformity with the law may be enforced against the lands of nonresidents of the state, and on whom, for this reason, no personal service can be had, by giving them notice by publication; but there can be no personal decree against the owner. The leading case on that subject, in which this question was thoroughly discussed, is Arndt v. Griggs, 134 U.S. 316, 10 Sup.Ct. 557, 33 L.Ed. 918, where the authorities are carefully reviewed by the court. This rule has been followed by the federal as well as state courts generally. Wehrman v. Conklin, 155 U.S. 332, 15 Sup.Ct. 129, 39 L.Ed. 167; Lynch v. Murphy, 161 U.S. 251, 16 Sup.Ct. 523, 40 L.Ed. 688; Hamilton v. Brown, 161 U.S. 275, 16 Sup.Ct. 585, 40 L.Ed. 691; Ormsby v. Ottman, 29 C.C.A. 295, 85 F. 492; McLaughlin v. McCrory, 55 Ark. 442, 18 S.W. 762, 29 Am.St.Rep. 56. The time given-- four full weeks-- is not so unreasonable as to justify a court to declare a statute solemnly enacted by the Legislature of a state to be void. Bellingham, etc., Co. v. New Whatcom, 172 U.S. 314, 19 Sup.Ct. 205, 43 L.Ed. 460; Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112, 17 Sup.Ct. 56, 41 L.Ed. 369. In Roller v. Holly, 176 U.S. 398, 20 Sup.Ct. 410, 44 L.Ed. 520, it was held that five days notice to a defendant residing in Virginia to appear in a court held in Texas, when it would take a party traveling continuously four days to reach the place where the court is held, is unreasonable; but from the citation of the various statutes of the different states found in the opinion of the court in that case it will readily be seen that four weeks' notice is not unreasonably short. In Hanover Nat. Bank v. Moyses, 186 U.S. 181, 192, 22 Sup.Ct. 857, 862, 46 L.Ed. 1113, the constitutionality of the bankruptcy act was attacked upon the ground that 'the notice provided by the act (ten days) is unreasonably short. ' But the chief justice, who delivered the unanimous opinion of the court in overruling this contention, said:

'Considering the plenary power of Congress, the subject-matter of the suit, and the common rights and interests of the creditors, we regard the contention as untenable. Congress may prescribe any regulations concerning discharge in bankruptcy that are not so grossly unreasonable as to be incompatible with fundamental law, and we cannot find anything in this act on that subject, which would justify us in overthrowing its action.'

The fact that the complainants reside in the state of Ohio cannot change the rule. It would hardly be reasonable to expect Legislatures, in enacting laws of this kind, to provide for a longer time to such defendants as reside a greater distance than others. All that the Legislature is required to do is to give a reasonable time, and four weeks is not unreasonable.

In Huling v. Kaw Valley Railway, 130 U.S. 559, 563, 9 Sup.Ct. 603, 605, 32 L.Ed. 1045, a statute of the state of Kansas, which provided for notice by publication for 30 days was attacked, as is done in this case, and in reply to the objections...