Crudup v. Richardson

• Decision Date: 09 November 1895
• Citation: 32 S.W. 684,61 Ark. 259
• Parties: CRUDUP v. RICHARDSON
• Court: Arkansas Supreme Court

32 S.W. 684

61 Ark. 259

CRUDUP v. RICHARDSON

Supreme Court of Arkansas

November 9, 1895

Appeal from Franklin Circuit Court, Ozark District JEPHTHA H. EVANS Judge.

Reversed and remanded.

Virgil Bourland for appellant.

1. The sheriff's return is not upon a true copy of the order. It does not show: (1) Posting at the court house door; (2) printing in newspapers published in Arkansas; (3) that the posting and publishing was thirty days before the time fixed for presentations of warrants; and (4) no proof of publication of publishers was filed as part of, or with, the returns. Sand. & H. Dig. sec. 1004.

2. The amended return fails to show that the posting and publishing was at least thirty days before the day fixed. 48 Ark. 238; 51 Ark. 34; 33 id. 740; 37 id. 110. The affidavit of a publisher should be made and filed before judgment, and while he is publisher. After the suit it is ex parte, and inadmissible. Mansf. Dig. sec. 4359-60; 51 Ark. 34.

3. The jurisdiction of the county court in these matters is special and no presumptions can be indulged; all necessary facts must be shown. 51 Ark. 34; 10 F. Rep. 891; 9 S.W. 309; 3 Ark. 537 16 S.W. 197; 48 Ark. 239; 25 id. 261; 57 id. 649.

4. Even if the notice was lawful, the time fixed for presentation was Sunday, and the call was void.

5. The warrants are not barred, but are still receivable for taxes. Sand. & H. Dig. sec. 1243; 36 Ark. 487; 39 id. 139; 37 id. 110; 57 id. 400; 54 id. 168.

Geo. A. Mansfield for appellee.

1. The record shows every jurisdictional fact. Every requirement of the statute was strictly complied with, and the judgment cannot be collaterally attacked. 57 Ark. 49; Ib. 628; 53 id. 476. The cases cited (48 Ark. 238; 51 id. 34) are not applicable here, for in those cases the record was silent as to jurisdictional facts. Freem. Judg. secs. 123-4, 127; 5 Wend. 148; Hawes on Jur. sec. 8, 234; Newm. Pl. & Pr. pp. 55, 56; Wells on Jur. p. 28. When the record recites the jurisdictional facts, the parties whom it concludes cannot deny or disprove them. 11 Ark. 130; 25 id. 60; 2 S.W. 707; 48 Ark. 151; 2 S.W. 847; 48 Ark. 238; 57 id. 649; Ib. 628.

2. It was not necessary to specifically set out the return of the sheriff, or the proof of publication in the record, and where the record recites that proper legal notice was given, the presumption does exist that the recital was made upon proper facts, and the judgment cannot be collaterally attacked. 57 Ark. 49.

3. But it was competent for appellee to prove that proper notice was given, and this was done.

4. Fixing Sunday as the day of presentation was a mere clerical error; but if not, parties could present warrants at any time up to that day, or on the day following. 6 Johns. 326; 3 Pa. 200; 33 Ga. 146. For, when the time expires on Sunday, a party has all next day to do what is required. But holders had the full three months, excluding Sunday, to present their warrants. 56 Ark. 45.

5. The warrants were barred by limitation. 54 Ark. 168.

OPINION

BUNN, C. J.

The appellant, being the holder of two certain warrants on the treasury of Franklin county, presented and tendered the same to the appellee, as collector of revenue of said county, in payment of certain county taxes assessed and charged against him, and appellee refused to accept the same. Appellant then sued out his writ in the Franklin circuit court to compel the acceptance of his said warrants in payment of said taxes. The appellee filed his response, setting up the previous order of the county court of said county debarring the holder of said warrants from any benefit therefrom.

The sole issue in the case is as to the validity of the order of the county court mentioned in the response; and the facts will more definitely appear from the following history of the proceedings in that court: On the first day of May, 1884, the same being a day of its regular April term, the said county court made the following order, to-wit: "In the Matter of Calling in the Outstanding Warrants of Franklin County, Ark. Whereas, it appearing to the court that, on the 27th day of October, 1880, there was a call made by the court for the bringing in and producing all the then outstanding Franklin county scrip or warrants that had been issued prior to the first day of January, 1880, for reissuance; and it further appearing to the court that three years and upwards have transpired and passed since that time; and it further appearing to the court, for the purpose of ascertaining the present indebtedness of the county, it is necessary, under the law authorizing each county in the state every three years to call in her outstanding scrip or warrants for reissuance, that the same be ordered in,--it is therefore ordered that all holders of Franklin county scrip or warrants issued prior to the first day of May, A. D. 1884, shall present the same to the clerk of the county court of said county of Franklin, at Ozark, in said county, at the next July term, on the 10th day of August, 1884, of said court, for reissuance; and it is further ordered that all persons who shall hold any warrants of said county, and neglect and refuse to present the same at the time and place aforesaid, as required by this order, shall thereafter be forever debarred from deriving any benefit from their claims; and it is further ordered that the sheriff of Franklin county notify the holders of said county warrants to present the same to the county court at the time and place fixed as aforesaid for reissuance, by putting up at the court house door, and at the election precincts in each township in said county, at least thirty days before the time appointed by the order of the said county court for the presentation of said warrants, a true copy of this order, and by publishing the same in newspapers printed and published in the state of Arkansas for two weeks in succession, the last insertion to be at least thirty days before the time fixed by said county court for presentation of said warrants."

The return of the sheriff, showing in what manner he gave the notice thus directed to be given, was expressed in general terms, to the effect that the notice had been given as directed in said order, by "posting, as required, in each township, and advertising in two newspapers,--Ozark Democrat and the Weekly Sun,--this July 11th, 1884." And on October 2d, 1889, during the pendency of the present proceedings, said sheriff, then out of office, on motion, and by leave of the court, and over the objection of appellant, filed the following amended return, to-wit: "State of Arkansas, County of Franklin: I hereby certify that I have before this, the 10th day of July, 1884, executed the within order, as therein commanded, by posting notices as required at the courthouse door, and at each election precinct in each township in said county, and published the same, as therein commanded, in two newspapers printed and published in the State...