Weeks v. the Arkansas Club , 201 Ark. 423 ( 1940 )

On March 31, 1936, the St. Francis Levee District brought suit in the chancery court against certain lands to foreclose its lien for delinquent levee taxes for the year 1935. Included in said suit was the 40 acres of land here in controversy belonging to appellee, Arkansas Club. A decree of foreclosure was rendered June 26, 1936, but for some reason was not entered until October 25, 1937. A commissioner was appointed to make the sale, which was made to appellant, reported to the court and confirmed by it on December 28, 1937. Appellee Arkansas Club had no actual notice of the suit as service was by warning order.

The Arkansas Club neglected by oversight to pay the levee taxes for 1935, but did pay for 1936, 1937, 1938, and 1939, and no notice was ever given it by the collector that the land had been sold to appellant for the 1935 taxes.

The present action was begun on February 14, 1940, by Reese Young, a tenant on the land, against appellant, Dolores Proctor and appellee Dick Huxtable, but Young and Proctor have passed out of the case and the suit is one between appellant and appellees. Appellant claimed title by virtue of his purchase under the foreclosure decree of June 26, 1936. Huxtable answered alleging many grounds which rendered the sale for levee taxes void, one of them being that the notice of the filing of the suit to foreclose the lien for levee taxes for its 1935 tax was published in the Crowley Ridge Chronicle, a newspaper published in Forrest City, Arkansas, and was run only three times, to-wit, in the issues of April 16, 23 and 30, 1936, these facts being shown by the proof of publication filed in said suit. Later, Arkansas Club was made a party and it adopted the answer of Huxtable. Trial resulted in a decree for appellees which canceled appellant's deed but they were required to reimburse appellant for the $12.75 with interest which he paid under said original decree for the land. The case is here on appeal.

It is conceded that the applicable statute relating to the time and manner of giving notice to landowners of the pendency of a suit to enforce liens for delinquent taxes in the St. Francis Levee District is act 262 of the Acts of 1909, and that it provides that the clerk shall cause to be published a notice containing said list of lands in some newspaper for four weekly insertions. Under said act the court acquires jurisdiction at the next term of court only if four weeks publication have been made before the day of trial. The decree in the foreclosure suit, rendered June 22, 1936, but entered nunc pro tunc on October 25, 1937, provides: "On this day comes the plaintiff (St. Francis Levee District), by its attorney, Burk Mann, and the defendants, though duly and legally summoned by warning order, proof of publication (of) which has been filed herein, come not but fall to answer, and this cause is submitted to the court upon the complaint, exhibits and proof of service of process from all of which the court "finds," etc. We think this reference in the decree to the manner of service "by warning order, proof of publication (of) which has been filed herein" and "proof of service of process" sufficiently identifies the proof of publication to make it a part of the record to which the court may look in the present action to determine its jurisdiction or lack of it in the former. An inspection of this proof shows it was published only three times, weekly for three weeks instead of four, and this failure to so publish the notice for four weeks rendered the foreclosure decree void for want of jurisdiction to render it.

It is conceded that this present action is a collateral attack on the decree of June 22, 1936. In Union Investment Co. v. Hunt, 187 Ark. 357, 59 S.W.2d 1639, we said: "It has been many times held that in determining whether a domestic judgment, collaterally attacked, is void for want of notice, it must be done by the court on an inspection of the record only." In Price v. Gunn,114 Ark. 551, 176 S.W. 247, L.R.A. 1915C, 158, cited and quoted from in Union Inv. Co. v. Hunt, supra, it was held that every presumption in favor of the jurisdiction of the court and the validity of the judgment is indulged unless it affirmatively appears in the record itself that facts essential to jurisdiction are lacking. It was there said: "The affidavit in proof of the publication of the notice of pendency of the suit is not a part of the record, however, from which it can be shown that there was want of jurisdiction by the court rendering the decree, no mention or recital of such proof of publication being found therein." In that case the decree failed to identify or refer to the proof of publication, but was couched as follows: "Upon call of this cause, it appearing that all persons and corporations . . . have been fully and constructively summoned as required by law, and that said interested persons and corporations come not but make default." But in Union Indemnity Co. v. Hunt, supra, and here the decree particularly refers to the proof of publication and identified how the service was had. We held in that case that the decree which recited "that due and proper service has been had upon all of the owners of the said lands . . . by means and reason of the publication of a notice of the pendency of said suit as is required by law, which notice was published for four consecutive weeks in the Stuttgart Arkansawyer," etc., sufficiently identified the proof of publication to make it a part of the record and could be looked to in determining the jurisdiction. There the notice failed to describe Hunt's land and we held the decree void as to it, and that when the proof of notice was looked to it contradicted the general terms of the decree as to "due and proper service." We there said: "On the other hand as has been frequently held, if the record contradicts the finding of service or notice in the decree, the record stultifies itself, and the decree is overcome." Citing cases. It is true the recitals in the decree as to notice in that case went into more detail than in this, but we think this can not affect the result. The decree in this case recites that the defendants were "summoned by warning order, proof of publication (of) which has been filed herein" and that the cause was submitted upon the complaint, exhibits and proof of service of process. The court was, therefore, justified in looking to the whole record to determine its jurisdiction and when it examined the proof of publication on file and thus identified in the decree, it found there were only three publications instead of four, as required by said act 262, and that this part of the record contradicted the general recital of due and legal service, thereby stultifying itself and overcoming it.

The court properly refused appellant's offer to prove de hors the record that publication was actually made four times, as jurisdiction on collateral attack must be determined from an inspection of the record itself.

The decree is accordingly affirmed.