Gregory v. Bartlett

• Decision Date: 24 October 1891
• Citation: 17 S.W. 344,55 Ark. 30
• Parties: GREGORY v. BARTLETT
• Court: Arkansas Supreme Court

17 S.W. 344

55 Ark. 30

GREGORY v. BARTLETT

Supreme Court of Arkansas

October 24, 1891

APPEAL from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

Minor Gregory brought ejectment against Liberty Bartlett, claiming title by purchase at an overdue tax sale. On defendant's motion the cause was transferred to the chancery court. Defendant filed an answer which he asked to be taken as a cross-bill and in which he questioned the validity of the overdue tax proceeding.

From the transcript of the record in the overdue tax suit against the land in controversy it appears that the complaint was filed on May 31, 1881, and on March 18, 1882, final decree was entered, condemning the land to be sold for overdue taxes. It does not appear that the order required by section 2 of the overdue tax act was entered on the record by the clerk, though it was duly published. The final decree however, recites that, on the filing of the complaint in this action, the clerk entered on the records of the court an order that all persons having any right or interest in the lands mentioned and described in the complaint should appear within forty days from the date of said order, and show cause why a lien should not be declared on said lands for taxes due and unpaid thereon, and why the said lands should not be sold for the non-payment thereof. On August 1, 1887, a nunc pro tunc order was made reciting that the order aforesaid was "by misprision of the clerk," omitted to be entered of record, and directing its entry as of the date of May 31 1881.

The court decreed that the overdue tax sale be annulled and defendant's title quieted, but allowed plaintiff no re-imbursement for taxes paid on the land. Plaintiff has appealed.

Decree affirmed, reversed and cause remanded.

U. M. & G. B. Rose for appellant.

1. Nothing can be inquired into in this cause save the jurisdiction of the court that rendered the overdue tax decree. 49 Ark. 336; 50 id., 188; 49 id., 416; 40 id., 42; 20 id., 583; 44 id., 411; ib., 267. If the court acquired jurisdiction, its decree cannot be collaterally attacked. Ib.

2. By misprision of the clerk, the order required by section 2 of the overdue tax law was omitted. This was supplied by nunc pro tunc entry. The power to make its records speak the truth is inherent in the court. 4 Ark. 591; 9 id., 185; 17 id 100; 25 id., 214; 31 id., 194; 35 id., 118; ib., 278; ib., 583. The order made on the filing of the complaint is a mere formality preliminary to the publication of the warning order. It is not jurisdictional.

3. The court failed to give appellant a lien for the taxes settled by his purchase money.

P. C. Dooley for appellee.

1. In these special proceedings the court can only acquire jurisdiction by filing the complaint and by publication of the order required by section 2. The making and publication of this order are jurisdictional facts which must appear of record. Black, Tax Titles, p. 223; 12 Ala. 617; Cooley, Tax., 337; 6 Yerger, 22; 3 Johns. Cases, 1 and 7. There is no record or evidence that the order required by section 2 was made. A nunc pro tunc order can only be made after due notice, and then only to show what was actually done. In this case no order was ever made, and there was nothing to be supplied. Freem., Judg., 68; 1 Wall. 627; 18 Me. 183; 10 Mo. 359; 45 Mo. 171; Mansf. Dig., sec. 3909; 24 Ill. 295; 18 Pa. 148; 34 Ark. 300; 46 Wis. 363.

2. No claim was made by the plaintiff for the sum he paid, and no return thereof or lien therefor is asked, and no proof of payment made.

OPINION

COCKRILL, C. J.

The second section of the act of 1881 for the enforcement of payment of overdue taxes by foreclosure in equity, upon a complaint filed for that purpose, is as follows:

"On the filing of such complaint, the clerk of the court shall enter on the record an order, which may be in the following form:

"State of Arkansas on relation of , plaintiff, v. Certain lands on which taxes are alleged to be due, defendant.

"Now, on this day came said plaintiff, and files here in court his complaint, in which he sets forth that there are certain taxes due on the following lands:

[Here insert a description of the lands.]

"Now, therefore, all persons having any right or interest in said lands, or any of them, are required to appear in this court within forty days from this date, then and there to show cause, if any they can, why a lien should not be declared on said lands for unpaid taxes, and why said lands shall not be sold for non-payment thereof." (Acts 1881, p. 65.)

The act then directs the clerk who makes the order to cause a copy of it to be published at once in a newspaper published in the county, or, if there is no such newspaper, to post a copy of the order at the court-house door, and provides that such publication shall be taken as notice to the world of the contents of the complaint in the cause. No other provision for notice to the land owner is made.

The question at the threshold of this cause is this: Will the publication of the warning order in the statutory form, without the order therefor being previously made by the clerk as required by the second section, give the court jurisdiction to condemn the lands? If the court had not jurisdiction to condemn the lands, the decree upon which Gregory's title rests is a nullity, his title fails, and he cannot recover the possession.

We are not embarrassed by the consideration of the question whether jurisdiction to sell may not be acquired by seizure of lands without other notice, as was indicated in Feild v. Dortch, 34 Ark. 399. Under the act in question no actual seizure is contemplated, and there is nothing for the jurisdiction of the court to rest upon except the notice by publication. McCarter v. Neil, 50 Ark. 188, 6 S.W. 731.

Without the statutory notice, therefore, there can be no jurisdiction. If the clerk makes the warning order, as the second section of the act requires, but fails to publish or post it, and that fact appears in the judgment record, there could be no justifiable pretence of jurisdiction. If he publishes the statutory warning without first making the order required by section 2, the question is, does he make a legal publication? In other words, is he authorized by the statute to make publication when there is no previous order of record? If he is not so authorized, then the publication is without authority and is not legal notice to the owner of the land.

In Anderson v. Coburn, 27 Wis. 558, it was ruled that publication made before, when the statute authorized it only after, filing the complaint, was no publication because it was unauthorized. To the same effect is Ellis v. Fletcher, 40 Mich. 321. In ordinary attachment proceedings against non-residents, publication without seizure does not give jurisdiction, because the statute requires the seizure as a prerequisite to publication. In Michigan, a warning order was authorized to be published within thirty days from a given time, and one published after that time was held to be without authority and to confer no jurisdiction. Millar v. Babcock, 29 Mich. 526. In Iowa the statute required that an order for a warning order should be made by the court or judge where the suit was brought, or by the county judge. A publication made in pursuance of an order made by the clerk was held to be without authority and void. Bardsley v. Hines, 33 Iowa 157.

These cases are illustrative of the rule that an unauthorized publication is, in legal effect, no publication. Now, as a prerequisite of the clerk's authority to publish a warning order in the class of cases under consideration, he must make an order setting forth facts material for the land owner to know, by entry upon the records of the court. When this requirement of the statute is complied with, it furnishes to the owner of delinquent lands a means of information which the statute designed he should receive. Searching the records and finding no order for a proceeding against his land, he had a right to presume that none existed. There is nothing in the statute to indicate that the legislature considered the entry of the order upon the record as of any less significance than the publication of it. In a section of the act where a form of a decree to be entered is given, it is made to recite that the order was entered of record as well as that it was published; and the requirement as to publication is that a copy of the record entry shall be published. The order is the sole authority for the publication, and the evidence of it which the statute requires is the record entry. Galpin v. Page, 85 U.S. 350, 18 Wall. 350, 372-3, 21 L.Ed. 959.

The statute does not authorize the clerk to make the order in any manner other than by entry on the record, and authorizes publication of nothing except a copy of the record. To say that the clerk can dispense with the record and make his entry in the...