Johnson v. Hunter

Decision Date20 August 1906
Docket Number2,073.
PartiesJOHNSON et al. v. HUNTER et al. [a1]
CourtU.S. Court of Appeals — Eighth Circuit

(Syllabus by the Court.)

Under the Arkansas Special Statute (Laws 1893, pp. 24, 119; Laws 1895, p. 88) for enforcing the payment of levee taxes upon lands in the St. Francis levee district by suits in the chancery courts, which provides that 'notice of the pendency of such suit shall be given as against nonresidents of the county * * * by publication.' but 'actual service of summons shall be had where the defendant is in the county or where there is an occupant upon the land,' and under section 5679, Sand. & H. Dig, which the act makes applicable to such suits, an affidavit filed in the suit and alleging that a defendant, proceeded against as a known owner, is a nonresident of the county and is absent therefrom, and that there is not an occupant upon his land is a prerequisite to service by publication against him, and is strictly jurisdictional in character.

An affidavit for publication which is not merely informal, but entirely fails to state some of the facts made essential by statute, will not authorize service by publication.

The presumptions which the law implies in support of the judgments of superior courts of general jurisdiction only arise with respect to jurisdictional facts, concerning which the record is silent, and when it discloses the evidence upon which service by publication was had, and this was ineffectual for the purpose, it will not be presumed that other or different evidence was presented, but the judgment will be void and open to collateral attack.

William M. Randolph (George Randolph and Wassell Randolph, on the brief), for appellants.

A. B Shafer (L. P. Berry, on the brief), for appellees.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District judge.

VAN DEVANTER, Circuit Judge.

This is a controversy over the title to certain lands in Crittenden county, Ark., which were sold under decrees rendered in 1898 and 1899 by the chancery court of that county in suits prosecuted by the St. Francis levee district to enforce the payment of levee taxes. There were two such suits, one embracing part of the lands and the other the remainder, the proceedings in which were the same so far as they are material to the present decision. The appellants are the heirs at law of A. H. Johnson, the owner of the lands prior to and at the time of the suits, and the appellees are the holders of the title conveyed by the sales made under the decrees.

The appellants, by a bill to quiet title, collaterally assailed the decrees upon the ground, among others, that, in so far as they affect the lands now in controversy, they rest entirely upon service of notice by publication, which was unauthorized and void, because no affidavit was made or filed showing or stating the existence of conditions rendering that mode of service permissible. The appellees, by a cross-bill, affirmed the validity of the decrees, as also of the sales thereunder and prayed that their title be quieted. The suit was commenced in the chancery court of Crittenden county and was then removed to the Circuit Court, which, upon final hearing, rendered a decree dismissing the bill and granting the relief prayed in the cross-bill. 127 F. 219.

The other facts material to the present decision are as follows: Johnson was a resident of the state of Ohio. He did not appear in either of the suits of the levee district and knew nothing of them. No attempt was made to bring him into court by actual service of a summons. The complaints described him as the known owner of the lands now in controversy, alleged that he was a nonresident of Crittenden county, and prayed that a warning order be issued against him and such other defendants as were alleged to be nonresidents, and that summons be issued for the resident defendants, but there was no allegation that Johnson was not then in the county or that there was then no occupant upon his lands. The complaints were verified. Upon the filing of them, and without the making or filing of any affidavit, other than the verified complaints, the clerk, conforming to the prayer of each complaint, made and caused to be published warning orders against Johnson and such other defendants as were alleged to be nonresidents. Each decree recites that certain of the defendants, not including Johnson, were served with summons by the sheriff, and that certain other defendants, including Johnson, were constructively summoned or warned by publication. Neither decree purports to find that Johnson was not in the county when the suit was commenced, or that there was then no occupant upon his lands, or that notice to him by publication was authorized.

The suits were instituted under the Arkansas act of February 15, 1893, as amended March 21, 1893, and April 2, 1895 (Laws 1893, pp. 24, 119; Laws 1895, p. 88) which contains these provisions:

'And notice of the pendency of such suit shall be given as against nonresidents of the county, and unknown owners, respectively, when such suits may be pending, by publication. * * * And 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 lands proceeded against, notice of the pending suit shall be given by the service of personal summons of the court. * * * And provided further, actual service of summons shall be had where the defendant is in the county or where there is an occupant upon the land. * * * Said suit shall be conducted in accordance with the practice and proceedings of chancery courts in this state, except as herein otherwise provided. * * * Laws 1895, pp. 89-92.

The act also contains a form of notice, to be used when service by publication is had, which is in the nature of an extended warning order, to be made or issued by the clerk, and is required to set forth names of the known owners who are to be thereby notified, together with a description of their lands. How the clerk is to be advised when the conditions exist, in respect of any defendant, which render service by publication permissible is not directly stated, but the provision that suits to enforce the payment of taxes shall be conducted according to the practice and proceedings of chancery courts, except as it is otherwise provided in the act, makes applicable to such suits section 5679 of Sandels & Hill's Digest, which, in respect of proceedings in the chancery and other courts of the state, authorizes the clerk to make a warning order and to cause it to be published only when it appears by affidavit filed in his office that the conditions exist which render that mode of service permissible. Such an affidavit, adapted to the terms of the levee act, and placed of record in the suit, is therefore a prerequisite to the issuance and publication of the prescribed warning order, and is strictly jurisdictional in character. Memphis Land & Timber Co. v. St. Francis Levee District, 70 Ark. 409, 68 S.W. 242; McMahan v. Smith, 69 Ark. 591, 65 S.W. 459; Howard v. De Cordova, 177 U.S. 609, 614, 20 Sup.Ct. 817, 44 L.Ed. 908; Noble v. Union River Logging R.R. Co., 147 U.S. 165, 173, 13 Sup.Ct. 271, 37 L.Ed. 123; Earle v. McVeigh, 91 U.S. 503, 508, 23 L.Ed. 398; Barber v. Morris, 37 Minn. 194, 33 N.W. 559, 5 Am.St.Rep. 836; Brown v. St. Paul, etc., Co., 38 Minn. 506, 38 N.W. 698; Murphy v. Lyons, 19 Neb. 689, 28 N.W. 328; Anderson v. Coburn, 27 Wis. 558; Chase v. Kaynor, 78 Iowa, 449, 43 N.W. 269; Adams v. Baldwin, 49 Kan. 781, 31 P. 681. We say adapted to the terms of the levee act, because the particular conditions in which constructive service is permissible in other suits, as specified in section 5679, such as that the defendant is a nonresident of this state, or has departed from this state with intent to delay or defraud his creditors,' are essentially different from those specified in the levee act and are inapplicable to suits under it. Now what are the conditions in which service by publication against a defendant, as a known owner, is permissible in suits under that act? The answer is not doubtful when the provisions of the act before quoted are read together in the light of recognized rules of interpretation. The conditions are that the defendant must be a nonresident of the county and must be absent therefrom and that there must not be an occupant upon the land. If the defendant be a resident of the county, or be present therein, or if there be an occupant upon the land, actual service of a summons is required. A defendant may be a nonresident of the county and yet be present therein so that actual service upon him can be had. If he is so present, the act plainly calls for such service. And a defendant may be a nonresident of the county and absent therefrom and yet the land be occupied by a tenant or other representative upon whom a summons can be served. If the land is so occupied, the act plainly calls for such service. Banks v. St. Francis Levee District, 66 Ark. 490, 494, 51 S.W. 830.

The Circuit Court, while seemingly conceding that service by publication in the absence of the requisite affidavit would be void, held that a verified complaint alleging the existence of conditions rendering such service permissible may be treated as both a complaint and an affidavit, and further held that the complaints of the levee district were sufficient to sustain the service by publication because they alleged that Johnson was nonresident of the county. We concur in the view that a complaint, if properly verified and containing what is required to set forth in an affidavit for publication, may perform the office of such an affidavit, but we cannot assent to the view that these...

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