McMahan v. Smith

• Decision Date: 26 October 1901
• Parties: McMAHAN v. SMITH et al.
• Court: Arkansas Supreme Court

Page 459

65 S.W. 459

McMAHAN v. SMITH et al.

Supreme Court of Arkansas.

October 26, 1901.

Appeal from chancery court, Garland county; W. H. Martin, Special Chancellor.

Bill by W. H. Smith and others against Mary J. McMahan and others. From a decree in favor of plaintiff, defendant Mary J. McMahan appeals. Reversed.

This was originally an action of ejectment brought in 1873 by W. H. Smith and John M. Harrell against Mary J. McMahan and the administrator of the estate of John A. Riley to recover of them the possession of a lot in the city of Hot Springs. The plaintiffs relied for title upon a patent from the United States conveying the lot in question to Riley, a mortgage from Riley to plaintiff Smith to secure a note for $232, and a foreclosure sale and conveyance under a power contained in the mortgage to John M. Harrell, as agent for Smith. The defendants appeared and answered, and set up, among other things, that the foreclosure sale to Harrell was void. The case was transferred to the equity docket, and several amendments to pleadings were filed by each party. Finally, on the 4th day of February, 1898, an amended complaint was filed, in which the parties are set out in the caption as follows: "W. H. Smith, Plaintiff, vs. Mary J. McMahan and the Heirs of John A. Riley, Deceased, Who are Unknown to the Plaintiff." In the amended complaint the plaintiff Smith recites the fact of the execution of the mortgage by Riley, and the sale of the lot under the power contained in the mortgage to Harrell, as agent of plaintiff. The prayer is, in part, that "the equity of redemption of John A. Riley and his heirs and legal representatives in said premises be foreclosed, and that the same be sold under the decree of the court in satisfaction of the mortgage to plaintiff." John M. Harrell does not appear as a plaintiff in this complaint, but his name is signed to it as the attorney of Smith. This complaint superseded the former complaints filed in the case, and the case was heard upon it, the answer thereto, and the evidence. There was a decree in favor of plaintiff for a foreclosure of the mortgage. The defendant Mary J. McMahan appealed.

Wood & Henderson, for appellant. J. M. Harrell, for appellees.

RIDDICK, J. (after stating the facts).

This is an action to foreclose a mortgage on land executed by John A. Riley. Riley was dead when the action was commenced, and the first question that arises on the appeal is whether his heirs were properly brought before the court, and whether the court had jurisdiction over them. There was no actual service of summons upon them, but the attempt was made to have them constructively summoned as unknown heirs. The statute which permits a constructive service by warning order in such case is as follows: "Where, in an action against the heirs of a deceased person as unknown heirs, or against other persons made defendants as unknown owners of any property to be divided or disposed of in the action, it appears by the complaint that the names of such heirs, or any of them, of such other persons are unknown to the plaintiff, a warning order, as directed in the last section, shall be made by the clerk against such unknown heirs or owners." Sand. & H. Dig. § 5681. It will be noticed that the statute requires that it must appear from the complaint that the names of the defendant are unknown. We understand from this that, before a warning order can be legally made against heirs as unknown parties, it must appear from an allegation in the complaint that the names of such heirs are unknown to the plaintiff. It is not a sufficient compliance with the statute to make the allegation in a separate affidavit, or to make it in the style or caption of the complaint; for it was intended that this allegation should be made and verified by affidavit, as other allegations of the complaint are verified. Now, the parties to this action, as set out in the style of the action, are "W. H. Smith, Plaintiff, against Mary J. McMahan and the Heirs of John A. Riley, Who are Unknown to Plaintiff, Defendants." But in the body or stating part of the complaint there is no such allegation. The complaint commences by alleging that "the plaintiff complains against Mary J. McMahan and the unknown heirs of John A. Riley, deceased," and in another part of the complaint the plaintiff avers that he has the...