Weeks v. the Arkansas Club

The question here is not whether any injustice has been done by permitting the landowner in the instant case to redeem his land upon returning the tax purchaser's money. If no other question were involved, we might all say, "Well done." But we have done much more. We have rendered the solemn judgments of courts less stable. No one may know when judgments have become final and are not open to collateral attack. It is conceded, of course, that the instant case is a collateral attack upon the decree foreclosing the tax lien.

The decree in the foreclosure case, rendered June 22, 1936, contains the recital that "On this day comes the plaintiff (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 fail 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, . . ." Here is the solemn recital that the cause was submitted upon proof of publication, which the court finds sufficient and upon which the decree was rendered. The chancellor who rendered that decree, also rendered the decree from which is this appeal. He knew, of course, the proof of publication was required, and he found that this proof had been made. It was not required that the decree recite what this proof was, as was done in the case of Union Investment Co. v. Hunt,187 Ark. 357, 59 S.W.2d 1039. This solemn finding has been set aside as false, because, perchance, there was found in the files of the case a proof of publication which is said to constitute the proof of publication upon which the foreclosure decree was rendered.

In the first place, the proof of publication offered in evidence at the trial from which is this appeal, does not contradict the finding in the foreclosure decree. This proof of publication recites ". . . that said advertisement was published in said newspaper 4 times, for 4 weeks consecutively, the first insertion therein having been made on the 16th day of April, 1936, second insertion 23rd day of April, 1936, third insertion 30th day of April, 1936." The most technical objection which could be made to this affidavit as to the publication of the notice is that it did not state the date of the fourth publication. But the affidavit did state that the notice was published "4 times, for 4 weeks consecutively." The first having been made on the 16th day of April, 1936, the fourth publication must necessarily have been made on May 7th.

The law requires publication of this notice for 4 weeks. The proof of publication shows that it was published "for 4 weeks consecutively," and it was a mere clerical misprision in failing to state that the fourth publication, which the affidavit says was made, was, in fact, made on May 7th.

But who can know that this error was not corrected and that other proof was not furnished in the shape of a more accurate affidavit? It is an undisputed fact that the notice was published in the issue of the newspaper of May 7th. A copy of the newspaper of date May 7th was offered in evidence at the trial from which is this appeal, showing a fourth publication of the notice on that day. May not that proof have been made upon the rendition of the original decree of foreclosure? May not proof of publication have been made which was not only substantially correct, but was exactly correct? Certainly, that presumption should be indulged when reenforced by the finding, incorporated in the decree, that the landowners had been "Duly and legally summoned by warning order, proof of publication of which has been filed herein." In view of this finding, contained in the decree, may it be said that the decree was rendered upon only three publications of the notice?

The majority cite the case of Union Investment Co. v. Hunt, 187 Ark. 358, 59 S.W.2d 1039, as supporting their action in vacating the foreclosure decree. An entirely different state of facts was presented in that case. In that case the decree of foreclosure was rendered upon a notice which was published "for four consecutive weekly issues in the Stuttgart Arkansawyer, . . ." There was thus precluded in that case any finding that it was otherwise published, and an inspection of this notice, thus published, disclosed the fact that the notice failed to include the lands there involved. In other words, a decree of foreclosure was rendered against lands which were not included in the foreclosure suit. The court, in that case, did not acquire jurisdiction to render a decree against lands which were not included in the delinquent notice published in the Stuttgart Arkansawyer. The decree in that case identified the lands against which the foreclosure decree was rendered, these being the lands described in the four weekly publications of the Stuttgart Arkansawyer, and when the publication, which that decree identified, and to which it referred, was examined, it appeared that the lands involved in the Hunt case had not been sued on.

We have here a very different question. It is not disputed that the lands in suit were described in the notice published in the Crowley Ridge Chronicle whose publisher made the affidavit above quoted in part, and the affidavit of the publisher of that paper shows the notice was published four times for four consecutive weeks beginning the 16th day of April, 1936. If that affidavit is insufficient, there is nothing in the decree to indicate a finding that the court did not have other and additional evidence as to the dates of publication, which were, in fact, made for the time and in the manner required by law, the notice having been sufficiently and properly published. In the Hunt case, supra, the decree refers to and identifies the list of lands upon which suit had been brought as thus advertised in the Stuttgart Arkansawyer, and the lands there involved were not included in that notice. The owner of the lands involved in the Hunt case did not know that his lands had been sued on, and he would not have acquired that information had he examined the published list of delinquent lands, as his lands were not included therein.

The opinion in the Hunt case does not purport to overrule the case of Price v. Gunn, 114 Ark. 551,170 S.W. 247, L.R.A. 1915C, 158. On the contrary, that case is quoted from and approved in the following language: "In Price v. Gunn, 114 Ark. 551, 170 S.W. 247, L.R.A. 1915C, 158, it was again held that every presumption in favor of the jurisdiction of the court and the validity of the judgment is indulged unless it affirmatively appears from the record itself that facts essential to the jurisdiction are lacking, and that a judgment or decree entered upon constructive service by publication is upon an equal standing with a judgment upon personal service, and it was there said: `The affidavit in proof of 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 other words, in that case the decree failed to identify the service or notice that was published, but was couched in the following general terms: `Upon call of this cause, it appearing that all persons and corporations having or claiming interest in any of the lands hereinafter described have been fully and constructively summoned as required by law, and that said interested persons and corporations come not but make default'."

In this case, as in the Price v. Gunn case, supra, the finding as to service was couched in general terms, and in neither case did the decree identify the service of notice that was published except in general terms. There is, therefore, nothing in the record in this case which precludes the finding that the court did not ascertain the fact to be that the notice had been published for four weeks, as it, in fact, had been, and as the court found and declared the fact to be in the foreclosure decree.

In the case of Clay v. Bilby, 72 Ark. 101,78 S.W. 749, 1 Ann. Cas. 917, it was said that "If the decree or judgment does not exclude the conclusion, the presumption is that sufficient and competent evidence was before the court to sustain its finding as to the publication of notice." We have many cases, both earlier and later, than the case of Clay v. Bilby to the same effect.

It appears to me that the majority opinion is unsound in law, and that its necessary effect will be to lessen the stability of and faith in the finality of the judgments of courts of record of this state.

The case of Borden v. State, 11 Ark. 519, 44 Am. Dec. 217, is one of the landmarks in the judicial history of this state, which has been cited and approved many times since its rendition, and this statement from that opinion has been many times quoted: "To this the maxim of the law `that a private mischief shall be rather suffered than a public inconvenience' would seem to give a satisfactory answer. Because the law of notice looks clearly to the protection of private rights, while the law of the validity of judgments until reversed by appellate powers, whilst it also protects private rights, looks emphatically to the effective administration of justice, the sanctity of records, the protection of the ministers of justice that they may fearlessly discharge their duties, the stability of titles, the end of strife and the repose of society. And another answer equally conclusive is that a question, whether there has been notice or no notice, relates not to the investiture of judicial power, but its rightful exercise."

Following this pronouncement, many of our cases appear to be conclusive of the proposition that a final judgment or decree of a court having jurisdiction of the subject-matter, is invulnerable to collateral attack, if said judgment or decree contains a finding that those things necessary to give jurisdiction of the person or the res were done. Among cases to that effect are the following: Boyd v. Roane, 49 Ark. 397, 5 S.W. 704; Taylor v. King, 135 Ark. 43, 204 S.W. 614; Kindrick, Curator v. Capps, 196 Ark. 1169, 121 S.W.2d 515.

In my opinion, the decree here appealed from should be reversed, and the decree foreclosing the lien of the Levee District should be upheld, and I, therefore, very respectfully dissent.