Cissell v. Pulaski County

• Decision Date: 01 January 1881
• Citation: 10 F. 891
• Parties: CISSELL v. PULASKI COUNTY.
• Court: U.S. District Court — Eastern District of Arkansas

10 F. 891

CISSELL v. PULASKI COUNTY.

United States Circuit Court, E.D. Arkansas.

October Term, 1881

John McClure, for plaintiff.

B. C Brown, for defendant.

CALDWELL D.J.

1. It is not material to inquire into the regularity of the order for the call of 1875, or the sufficiency of the notice. The county court had jurisdiction to adjudicate upon the validity of the warrants, if the holder submitted himself to its jurisdiction for that purpose, whether the order for the call and notice were valid or not. The object of the order for the call and of giving notice is to acquire jurisdiction over and bind those who do not voluntarily submit their warrants for examination and adjudication. The county court has jurisdiction to pass upon the validity of a warrant or any other claim against the county at any time it may be presented to it by the holder. Section 595 (sixth subdivision) and section 611, Gantt's Digest. And when it invites holders to present their warrants and they do so, and the court acts upon them and there is no appeal taken from its judgment, the action is as binding in all respects on the county and the warrant-holders as if the call and notice of it had been regular. Allen v. Bankston, 33 Ark. 744.

'The object of notice or citation in all legal proceedings is to afford to parties having separate or adverse interests an opportunity to be heard. It is not required for the protection of the applicant or suitor. ' Mohr v Manierre, 101 U.S. 425-6.

2. The call of 1877 was ineffectual to bar warrants not presented because it does not appear that notice of the call was given as required by law. The act under which the call was made requires the order to be published in 'newspapers printed and published in this state:' and by the provisions of the act of February 15, 1875, regulating the publication of legal advertisements in newspapers, the order must 'be published in some daily or weekly newspaper printed in the county: * * * provided, there be any newspaper printed in the county, having a bona fide circulation therein, which shall have been regularly published in said county for the period of one month next before the date of the first publication of said advertisement. ' The act of 1875 further provides that 'the affidavit of any editor, publisher, or proprietor, or the principal accountant, of any newspaper authorized by this act to publish legal advertisements, to the effect that a legal advertisement has been published in his paper for the length of time and number of insertions it has been published, with a printed copy of such advertisement appended thereto, subscribed before any officer of this state authorized to administer oaths, shall be the evidence of the publication thereof as therein set forth.'

The order was published in two papers published in the county but the proofs of publication do not state the papers, or either of them, had a bona fide circulation in the county, or that they had been published in the county for the period of one month next before the date of the first publication of the order. Publication of the order in a paper not 'authorized,' in the language of the act, 'to publish legal advertisements,' is a nullity; and whether the paper has the circulation, and has been published in the county for the period required by the statute, to authorize the publication of legal notices in its columns, are questions of fact to be proven in the mode provided by the statute for proving...