Crittenden Lumber Company v. McDougal

• Decision Date: 18 December 1911
• Citation: 142 S.W. 836,101 Ark. 390
• Parties: CRITTENDEN LUMBER COMPANY v. MCDOUGAL
• Court: Arkansas Supreme Court

142 S.W. 836

101 Ark. 390

CRITTENDEN LUMBER COMPANY v. MCDOUGAL

Supreme Court of Arkansas

December 18, 1911

Appeal from St. Francis Chancery Court; Edward D. Robertson Chancellor; affirmed.

Decree affirmed.

Norton & Hughes, for appellant.

1. The affidavit of nonresidence, the foundation of the issuance and publication of a warning order, is jurisdictional. 70 Ark 409; 68 S.W. 242; 147 F. 133, 219, 225; 66 Ark. 282; 50 S.W 503. Service by publication is a statutory substitute for personal service; it is a deviation from the common law, and the statute must be strictly pursued. 69 Ark. 591; 65 S.W 459; 48 Ark. 238, 246; 10 F. 891; 94 Ark. 338; 12 S.W. 905; 164 F. 963, 966; 33 N.W. 559; 43 N.W. 271. The court having no jurisdiction, the judgment was void and subject to collateral attack. Cases supra; 43 N.W. 271; 177 U.S. 609; 55 Ark. 30; 17 S.W. 344; 70 Ark. 207; 66 S.W. 916; 83 Ark. 234; 103 S.W. 386. See also Kirby's Digest, §§ 6055, 6057, and 164 F. 963.

2. The recital of due service is impeached and contradicted on the face of the record. 16 S.W. 831; 95 S.W. 572; 97 U.S. 444; 57 Ark. 49; 139 Id. 653. The affidavit for warning order is part of the record. 16 S.W. 831, and cases supra; 10 S.E. 113; 127 F. 219, 225-6; Freeman on Judments, § 75 et seq. and 125; 1 Black on Judgments, § 124; Wade on Notice, §§ 1361, 1382.

3. The levee decree is void on its face. The only way of divesting a nonresident's estate is by the publication of the land in the warning order. Personal service on an alleged resident owner is not sufficient. (136 S.W. 189; 139 Id. 653.) 89 Ark. 160; 33 N.W. 559; 43 N.W. 271; 110 U.S. 701; 152 F. 357; 103 S.W. 979; 86 Id. 147; 86 N.W. 494; 117 S.W. 907; 60 P. 608; 92 P. 1054; 16 S.W. 831; 13 Wis. 575; 79 N.E. 283; 110 P. 193; 103 Id. 462; 49 Ark. 397.

4. It was error for the court to depend on the personal service for jurisdiction. 26 Ark. 491; 49 Id. 397.

Mann, Rollwage & Morrow, for appellees.

1. The decree recites that Sweet Bros. were duly and personally served with summons as provided by law, and also "by publication of warning order as required by law." It was not necessary that Sweet Bros.' name should appear in the affidavit for warning order. 127 S.W. 983; 74 Ark. 174.

2. There is no requirement of law that the affidavit contain the name of the resident defendant. The court acquired jurisdiction of the subject-matter in rem and entered a decree finding that due service was had. This finding is not subject to collateral attack. 71 Ark. 101; 55 Id. 30. A recital of personal service, was merely cumulative.

3. 147 F. Rep. 133 was set aside in 204 U.S. 673.

OPINION

FRAUENTHAL, J.

This was an action instituted by the Crittenden Lumber Company plaintiff below, to cancel as a cloud upon its title a deed held by the defendants to a tract of land situated in St. Francis County. Plaintiff claimed ownership of the land and deraigned title thereto under mesne conveyances running back to the United States. Defendants acquired their title to the land by virtue of a deed executed by a commissioner of the St. Francis Chancery Court, in pursuance of a decree of said court subjecting the land to sale for the nonpayment of levee taxes. Plaintiff attacked the validity of said commissioner's deed upon the ground that the chancery court of St. Francis County was without jurisdiction to enter the decree under which said land was sold and said deed executed. The decree condemning the land to be sold for the nonpayment of the levee taxes was rendered on December 18, 1908, at a regular term of the St. Francis Chancery Court.

The suit upon which the decree is based was brought under and by virtue of the provisions of the act of the Legislature, approved April 2, 1895, which is amendatory of the act of the Legislature of February 15, 1893, establishing the St. Francis Levee District, in which district the land in controversy is situated. (Acts of 1893, p. 24; Acts of 1895, p. 88.)

These acts of the Legislature make the lands situated in said St. Francis Levee District subject to the payment of levee taxes, and provide that the payment thereof shall be enforced by a foreclosure suit. It is further provided that in such suit all or any of the delinquent lands may be joined and proceeded against and judgment entered against each tract, and that "said proceedings and judgments shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of said lands may be incorrectly alleged in said proceedings; and such judgment shall be enforced wholly against said land, and not against any other property or estate of said defendant."

The land in controversy was at the time of the institution of said suit owned by plaintiff, who was then and has ever since been a nonresident of the State. It is contended that duly authorized and legal notice was not given of the pendency of said suit, and on that account that the St. Francis Chancery Court did not acquire jurisdiction to enter a decree subjecting the land in controversy to sale for the alleged nonpayment of the levee taxes. This contention is made upon the ground that the land was in fact proceeded against as belonging to a resident owner; that proper affidavit was not made so as to authorize the issuance of a warning order in order to proceed against it as belonging to a nonresident owner.

By virtue of the above acts of the Legislature, the St. Francis Chancery Court acquired jurisdiction over the subject-matter of enforcing the payment of levee taxes on the land in controversy, and to make that jurisdiction complete it was only necessary to give notice of the pendency of the suit in the manner provided by the acts. To give such notice, the act authorizing the foreclosure proceedings provides: "Notice of the pendency of such suit shall be given as against nonresidents of the county and the unknown owners by 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 land, * * * which public notice shall be in the following form:" etc. The notice is addressed to all persons whomsoever having or claiming any interest in the land; and the specified form then contains this provision: "Then shall follow a list of supposed owners, with a descriptive list of said delinquent lands and amounts due thereon respectively, as aforesaid:" and concludes as follows: "And said persons and corporations and all others interested in said lands are hereby notified that they are required by law to appear and make defense to said suit." As to resident owners, the statute provides as follows: "As against any defendant who resides in the county where such suit may be brought, and who appears by the record of deeds in said county to be the owner of any of the land proceeded against, notice of the pending suit shall be given by the service of personal summons of the court at least twenty days before the day on which said defendant is required to answer as set out in said summons;" and provides further that actual service of summons shall be had when the defendant is in the county, or where there is an occupant upon the land.

In the complaint upon which the suit was brought, a large number of tracts of land and defendants were joined, and it was therein alleged that some of the defendants were residents of the county where the suit was brought, and that others were nonresidents thereof. The land in controversy is noted in the complaint as owned by Sweet Brothers, and a summons was issued upon the complaint against said Sweet Brothers and personally served upon them. At the same time an affidavit was made and filed in which it was stated that a number of the defendants, naming them, were nonresidents of said county, but Sweet Brothers were not named in said affidavit. Thereupon a warning order or notice of the pendency of the suit was duly issued and published in the manner and form prescribed by said act, in which the land in controversy was set out and described, with the supposed owner noted as Sweet Brothers. In the decree entered upon said complaint it is recited that certain defendants therein, including Sweet Brothers, were personally served with summons in manner prescribed by law, and that the other defendants, naming them, including said Sweet Brothers, were summoned by publication of warning order in the manner and form required by law. The decree further recites that the said warning order or published notice contained a description of the lands (including the land in controversy) thus proceeded against, and the names of the owners thereof and "notified said owners and all other...