King v. Dickinson-Reed-Randerson Company

• Decision Date: 02 March 1925
• Docket Number: 208
• Citation: 269 S.W. 365,168 Ark. 112
• Parties: KING v. DICKINSON-REED-RANDERSON COMPANY
• Court: Arkansas Supreme Court

269 S.W. 365

168 Ark. 112

KING v. DICKINSON-REED-RANDERSON COMPANY

No. 208

Supreme Court of Arkansas

March 2, 1925

Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor affirmed.

STATEMENT OF FACTS.

This is an appeal by nonresident defendants from an order of the chancery court refusing to set aside its decree in a mortgage foreclosure suit.

It appears from the record that Dickinson-Reed-Randerson company, a foreign corporation, brought suit in equity against P. W. King and Louella King, his wife, and Henry King and Florence V. King, his wife, to foreclose a mortgage on certain lands situated in Benton County, Arkansas.

P. W King and Louella King, his wife, after having been served with summons, entered their appearance to the suit. An affidavit for a warning order was made as to Henry King and Florence V. King, his wife, on the ground that they were nonresidents of the State of Arkansas. The warning order was duly issued by the circuit clerk, and both the affidavit for the warning order and the warning order itself contained the proper style of the suit and the proper name of the plaintiff. The proof of publication of the warning order showed Dickinson-Reed-Henderson Company, a corporation, as plaintiff.

The decree of foreclosure, amongst other things, contains the following: "The court finds that the defendants, P. W King and Louella King, his wife, were duly served with actual service on the 5th day of August, 1922, in Cherokee County Iowa, as provided by law for service on defendants out of the State; that Henry King and Florence V. King, his wife, were duly notified of the nature and pendency of this action by publication of a warning order in the Benton County Democrat a weekly newspaper of general and bona fide circulation in Benton County, Arkansas, printed and published at Bentonville, for the time and in the maner provided by law," etc.

After the commissioner appointed for that purpose had made his report of the sale of the lands, Henry King and wife filed exceptions to the report. Among other grounds, they asked that the decree of foreclosure be set aside because no proper service of summons by publication of warning order had been had upon them, and also that the plaintiff had not executed the bond required by § 6261 of Crawford & Moses' Digest.

On the 13th day of October, 1923, the chancery court refused to set aside its decree, and approved the report of sale of the commissioner. It was also ordered that the commissioner execute a deed to said land to the purchaser.

As above stated, the case is here on appeal.

Decree affirmed.

Rice & Rice for appellants.

The bond statute, C. & M. Digest, § 6261, et seq., was enacted specially for the benefit and protection of nonresident defendants; it is mandatory, and is applicable in this case. Act 661, General Acts 1923 p. 551, amending § 6261, supra, is inapplicable in the cause of a mortgage executed prior to its passage; but, if held to be applicable, then it is unconstitutional under art. 1, 10, U. S. Constitution, and under our State Constitution prohibiting legislation that will impair the obligations of a contract, or injuriously affect vested rights. 6 R. C. L. 329, § 319; 40 Ark. 423; 48 Ark. 219; 94 N.C. 134; 59 Iowa 200; 50 Ala. 342; 35 Conn. 563; 84 Ky 1; 45 Md. 546; 106 U.S. 124; 62 Me. 488; 36 Cyc. 1210; 3 Ark. 285.

The means and methods provided by statute for obtaining service by publication of warning order must be strictly followed, the proceeding being in derogation of the common law. The publication and service in this case was fatally defective. 32 Cyc. 483; Art. 2, § 21, Const. Ark. 7 R. C. L. pp. 131-2, § 102; Id. § 41; 120 S.W. 1155.

Nance & Seamster for appellee.

The decree of the court finding that appellants were duly notified of the pendency and nature of the action etc., is prima facie evidence of that fact, and will be taken as true, in the absence of evidence in the record showing to the contrary. 164 Ark. 340; 126 Ark. 164; 100 Ark. 63. See also 57 Ark. 49; 144 Ark. 382; 144 Ark. 436; 149 Ark. 215; 156 Ark. 134; 160 Ark. 277; 156 Ark. 453; 129 Ark. 193; 161 Ark. 87.

There can be no vested right in a mere remedy. The act No. 661, complained of by appellants, applies to causes of action pending as well as to those thereafter brought. 141 Ark. 512. Moreover, appellants have not asked for a retrial of the cause, and have not shown any meritorious defense. 157 Ark. 86.

OPINION

HART, J., (after stating the facts).

The chancery court did not err in refusing to set aside the decree of foreclosure on the ground that Henry King and wife had not been properly served by publication of warning order. The foreclosure suit was brought by Dickinson-Reed-Randerson Company, a corporation. In the affidavit for a warning order, and in the warning order itself, that corporation is named as plaintiff. The proof of publication of the warning order names the plaintiff as Dickinson-Reed-Henderson Company, a corporation. Hence it is claimed that there was no valid constructive service on the defendants. A sufficient answer to this contention is that no meritorious defense to the foreclosure suit is set up in the motion to set aside the decree. This court has expressly held that, on application by a defendant constructively summoned to set aside the decree, a meritorious defense must be shown by him. Moreland v. Youngblood, 157 Ark. 86, 247 S.W. 385.

Then, too, the foreclosure decree recites that Henry King and wife were duly notified of the nature and pendency of the action by publication of warning order, and the usual presumption which attaches to this finding in a decree must be had.

Because there is no statute forbidding it, parol evidence may be received to prove the publication of the warning order, and this carries with it the right of the court to hear parol testimony to...