Jones v. Ainell

• Decision Date: 10 April 1916
• Docket Number: 315
• Citation: 186 S.W. 65,123 Ark. 532
• Parties: JONES v. AINELL
• Court: Arkansas Supreme Court

186 S.W. 65

123 Ark. 532

JONES v. AINELL

No. 315

Supreme Court of Arkansas

April 10, 1916

Appeal from Lawrence Chancery Court, Eastern District; Geo. T Humphries, Chancellor; affirmed.

Decree affirmed.

W. P Smith and O. C. Blackford, for appellant.

The chancellor erred in holding the judgment void on collateral attack, as the original judgment recited that the affidavit and bond for attachment were properly filed. 79 Ark. 16; 101 Id. 390; 105 Id. 5. The judgment was in due form and recites all jurisdictional facts necessary and is valid on its face and can not be attacked collaterally.

W. A Cunningham, for appellee.

No proper affidavit for attachment was filed before the issue of the attachment. The attachment was void and the court had no jurisdiction. Kirby's Digest, § 345; Drake on Attachment (7 ed.), § 89, 89a; 101 Ark. 390. Jurisdiction must be shown by the record. The finding is sustained by the evidence.

OPINION

HART, J.

J Bruce Ainell instituted this action in the chancery court against Chas. Jones to set aside and declare void as a cloud upon his title, the judgment and subsequent proceedings in an attachment suit instituted in the Lawrence circuit court, Eastern District, wherein Charles Jones was plaintiff and Geo. M. Neterer and Marguerite Neterer were defendants. The material facts are as follows:

Charley Jones instituted a suit by attachment in the Lawrence circuit court for the Eastern District, against Geo. M. Neterer and Marguerite Neterer alleging that they were nonresidents of the State of Arkansas and owed him the sum of $ 298 and accrued interest. The record show that the attachment suit was commenced on August 31, 1907, and on that day Charley Jones filed an affidavit stating that the defendants were nonresidents of the State. A warning order was also issued on the same day. On the 28th day of February, 1908, a general order of attachment was issued. The record shows that the plaintiff by leave of the court filed an affidavit for attachment on March 10, 1908, and the affidavit for attachment filed on that day appears in the record. The judgment in the attachment case among other things, recites that an order of general attachment was issued and returned showing that the sheriff of Lawrence County had legally attached the land in this suit, the affidavit and bond having been executed and filed. The attachment was sustained and the land in controversy was ordered to be advertised and sold.

Charley Jones, the plaintiff in the attachment suit became the purchaser at the attachment sale for his debt and costs and the sheriff issued to him a certificate of purchase. No deed was ever executed to him. The lands were wild and unimproved and Charley Jones never went into the possession of them. On the 20th day of February, 1911, Marguerite Neterer by warranty deed conveyed the land in question to J. Bruce Ainell. The consideration expressed in the deed was $ 3,000, which was recited to have been paid by J. Bruce Ainell. The deed was duly acknowledged and filed for record.

The chancellor found that no affidavit for attachment was filed as required by law before the attachment was issued, and that the judgment in the attachment suit and the sale thereunder were void because no jurisdiction was acquired by the circuit court. Accordingly a decree was entered quashing all the proceedings in the attachment case and cancelling the same as a cloud upon the title of the plaintiff in the present suit. The defendant Jones has appealed.

This is a collateral attack upon the judgment in the attachment case and every presumption must be indulged in favor of the jurisdiction of the circuit court. Unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of the court did not exist, a collateral attack on the judgment will not prevail. Boyd v. Roane, 49 Ark. 397, 5 S.W. 704; Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S.W. 836.

It is the contention of counsel for the defendant that the recital of the judgment in the attachment case that an affidavit for attachment had been filed, raises the conclusive presumption that it was filed before the writ of attachment was issued and that if it should be held that the affidavit contained in the record is a part thereof and of equal verity with the judgment itself, that there is a presumption that there was another affidavit filed before the writ of attachment was issued. The affidavit for attachment in the record was filed by leave of the court and the order of the court permitting it to be filed shows that it was filed subsequently to the date on which the writ of attachment was issued. There is nothing in the affidavit itself or the order of court allowing it to be filed tending to show that it was filed as a substitute for a previous affidavit.

Under this state of the record, it is contended by counsel for the plaintiff that an affirmative showing is made that the writ of attachment was issued before the affidavit of attachment was filed and that therefore the judgment of the circuit court in the attachment case was void.

We do not deem it necessary to decide this perplexing question, for under the views which we shall hereinafter express, the decree of the chancellor being correct, should be affirmed even if an erroneous reason was given therefor. If it be considered that the judgment of the...