Memphis Land & Timber Co. v. Board of Directors of St. Francis Levee Dist.

• Decision Date: 03 May 1902
• Parties: MEMPHIS LAND & TIMBER CO. et al. v. BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST.
• Court: Arkansas Supreme Court

68 S.W. 242

MEMPHIS LAND & TIMBER CO. et al. v. BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST.

Supreme Court of Arkansas.

May 3, 1902.

Appeal from Cross chancery court; Edward D. Robertson, Chancellor.

Action by the board of directors of St. Francis levee district against the Memphis Land & Timber Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

This is an action brought by the board of directors of the St. Francis levee district, in the chancery court of Cross county, to recover assessments made against certain tracts of land in that county. There was a decree against the defendants, Memphis Land & Timber Company and H. M. Neeley, and against lands owned by them, and they appealed.

T. E. Hare and Rose, Hemingway & Rose, for appellants. J. C. Hawthorne, for appellee.

RIDDICK, J.

The appellants in this case were nonresidents. They did not appear in the action, and the decree against them was based on a constructive service by publication of a warning order. The record here does not show that there was any affidavit made as a foundation for the warning order against the defendants. The complaint filed in this action is neither signed nor verified as required by the statute, and no affidavit for the warning order appears in the transcript. There is, however, an affidavit of the deputy clerk of the chancery court filed with the transcript here, stating that an affidavit for the warning order had been made and filed with the clerk of the chancery court, and that it was afterwards lost; but this statement of the deputy clerk, not being a part of the record of the case, cannot be considered. We must presume that the transcript of the case filed here is a true and perfect copy of the record. If incorrect or incomplete, it should have been corrected by appropriate proceedings. This has not been done, and we cannot go outside of the record for the facts, but must determine the case from the facts as they appear in the record. No affidavit for warning order being found in the record, we must take it as established that none was made. Stayton v. Newcomer, 6 Ark. 451, 44 Am. Dec. 524; 3 Enc. Law & Prac. 152; 2 Enc. Pl. & Prac. 296.

It is said on part of appellee that in proceedings of this kind for the collection of assessments against land of nonresidents no affidavit for a warning order was required. But we do not concur in this statement. The statute directs that suits for the collection of these assessments "shall be...