ARK.] UNION INVESTMENT Co, v. ITUNT , . 357 - • UNION INVESTMENT 'COMi'ANY 1). KoNT: 4-2993 • Opithon 'delivered MaY 1, 1933. L JUDGMENT—COLLATERAL ArrAcK.—Whether a domestic judgment on collateral , attack is void for want of , notice must be determined by the court on inspection of the record only. 2. JUDGMENT—COLLATERAiL ATTACi.—A record which contradicts the finding of service of' notice in . a decree stulifies itself, and the decree is overcome. ' '' • ' ' 3.- DRAiNS—FORECLOSURE DECREE.-: --A , finding. in a tax .fOreclosure decree that due servide was ;bad on; landowners in; a drainage ; district by publication for four weeks in a certain ;newspaper and that the cause was submitted:to the cour't on ills Co ; rnpiaint, delinquent list and prOof of Publication iri ' such neWSPaPer Suitciently " identified tbe preof Of iiubliéatiOn ' te aiake it Part of tbe record ' in a suit to set aside the' tax . sale.. • • " 4. DRA1NS—iORECLOSURE . DECREE.41lie conrt •was without ,jurisdiction to order a sale !of . land 'for drainage tax_whére , theland was : not described •i in the published notice and 'hence, the sale was properly cancelled I on collateral attack .,. ; ) . , . Appeal from Arkansas Chancery CoUrt, .NOrthern District; Harvey &Ludas', oharicellov;--affirmed: ..; • - • deorge C. Lewis, foi appellant. • - ' ' ' .. ' ', , M. F. Elms and W.A. Leach; for appellee'. . . '..' MOHAIEY; J. Appellee is the. owner of the sontheast quarte]: of section 10," township : 2-south; iange 5 west, Arkansas County, which is incinded in Big : Island' Drain-' age District No. 8. Tile district . Was - organized under the general drainage distric't lawS . known as the alterna. tive drainage district system. M. Beck formerly owned _the land above described' , but, after his death,•.which oc-,
358 UNI ' Co.v. HUNT. [187 cUrred prior to January-1; 1918, his heirs conveyed 'Same to appellee on January 20, 1920, and the latter has been in the actual possession thereof since that time; culti vating it as a rice farm. The 1920 drainage district taxes on this and other lands were not paid and were returned delinquent. Thereafter, on December 4, 1925, said district brought Suit in Ihe chancery court -to forecloSe its lien against the delinqUerit lands, inelUdirig the lands in controversy, correctly describing them in the complaint.. Notice of the pendency of the suit was given by publication in a newspaper, and on January 5,.1926, decree was returned condeniriing' the land to be sold for the taxes, penalty and cost against . 'it, : and thereafter same was sold to the district, the . sale confirmed, and a certificate of purchase issued to the district. ThiS certificate was later assigned to appellant,- arid on-April 15, 1931, on the sUrrender of the certificate , to the Conindissioner in chancery, a deed was executed and d' elivered to appellantand approved by the court.. After apPellee's purchase of said land he paid all the drainage taxes accruing against it . for 1921 and subsequent years: It is agreed that the 1920 tax, the- one for , which the sale was made, amounting to $27.40, was not paid, and that theie 'has beeri no redemption from the coMMissiorier's Sale urileSs the later payments made by. appellee and 'accepted by the district may be held to be a redemption. In the decree condemning said land to sale for the delinquent taxes for the-year 1920, this' finding is made: "That due and proper service has been had upon all of the owners of the said lands and real estate hereinafter described by means and reason of the publication of a notice ,of the pendency and purpose of said.suit as is required , by law, which notice was published for four consecutive weekly issues in the Stuttgart Arkansawyer, a newspaper of bona fide circulation in the northern district of Arkansas County, therein describing said lands and real estate," etc. Said decree then continues : ?Whereupon said cause is sub. mitted to the court upon plaintiff's complaint, the proof of publication of the notice aforesaid," etc. Appellee brought this action to cancel and set' aside the sale of said land for taxes and the deed issued-to
ARK.] UNION INVESTMENT CO. V. HUNT. 359 appellant by the. commissioner making the sale. 04 a trial of the case on : an agreed statement of facts the court found for appellee and entered a decree canceling and setting aside its former decree condemning the above-described land for sale, canceling and holding for naught said sale, and canceling the deed issued to appellant. A lien was declared :upon said land in favor of appellant in the sum of $27.40. In the agreed statement of facts is the following: "It is agreed- that the notice attached to the complaint as Exhibit C is a correct copy of a notice . appearing in the files of said cause. It is•likewise agreed that the record showg that a proof of publication was filed in said cause, and. that the copy -of proof of publication attached to plaintiff's amended complaint as Exhibit C-2 is a correct copy of the same. It is also agreed that the list of lands named in said proof of publication is the same as:that contained in the notice, aforesaid, and that the lands here involved are not mentioned nor described in either said notice or said proof of publication." _ Several interesting questions are discussed by able counsel for both parties. We find it unnecessary to discuss but ione of them. It is undisputed that the notice published in the Stuttgart Arkansawyer, proof of publication of which was found among the papers on file in the case, failed to include the Above-described land, and it is conceded that ,this suit is a collateral attack on the decree of the chancery court • of January 5, 1926, con: demning said land- to sale for the unpaid drainage :district taxes. It is earnestly insisted by appellant,that the finding in said decree•that notice had been given for the time :and in the manner prescribed lay• law is conclusive as to the:jurisdiction . of •the court, and that no extrinsic evidence is competent to contradict it on collateral attack. -Section 6239, Crawford & Moses':Digest; provides : ,"In all cases where it •appears; :from a .recital in the records of any such court, that :such notice has been given, it:shall be evidence of such fact." It has been many, times held that in determining whether a ,dornestic judgment, ,col-laterally attacked, is void. for want of notice, it must be done by the court on an inspection . of the record only.
360 UNION- INVESTMENT CO. V. HUNT. - [187 BoYd v. Roan,e, 49 Ark. 397, 5 S. W. 704; 'McDonald v. Ft. Smith ce W. R. Co., 105 Ark. 5, 150 S. W. 135. In the latter case it was said: _"In a case Seeking to' kapdach col-laterally a domestic judgment; the question -as to.whether or not process has been served in the Manner prescribed by law, upon the parties defendant therein is tried alone by an 'inspection 'of the record, and the verity of such record cannot be assailed by parol evidence." The reason for, the rule is that judgments -and decrees'ought to and do import verity and 'stability, and; aS said in Boyd v. Roane, supra: "It is generally thought to be better that the doctrine that the recerd importing absolute verity ShoUld work . an occasional hardship than that public confiderice should , be shaken in the -stability of -judicial proceedings by suffering them to be lightly overturned; and for this reaSon the weight of authority in the case 'of a domestie judgment collaterally attacked is that the qUestion Of notice 'or Mi notice mist :be tried by 'the court-upori'an ilispection, of the . reccird only." 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. In § 273; Black on Judgments,'it is said: "But while it is inadmissible to contradict the record by' ex-•rinsic evidence, it-is always open to the . party to show that one part of- the record- contradicts another . part. Thus the recital of service• in-'a judgment may he• contradicted' by producing the 'original summons and the return. See also State ex rel. Atty. Gen. v s . Wilson, 181 Ark. 683, 27 S. W. (2d) 106; Holt v; , Manuel,.186 Ark. 435; 54- S. W. (2d) 66. In the case -of Giese v. Jones; .185 Ark. 548, 48 S. W. (2d) 232, it was held that, 'although the decree recited that' publication , of the notice as required by law was given', still, if the decree itself contradicted sueli -finding, it' was open: to- collateral attack In Price v. Gunn, 114 Ark 551; 170 S. W. 247; L. R. A. 19150, 158, it was again held that eveiy‘prestimption 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 con,
ARK.] UNION INVESTMENT 'CO. v. .1IUNT. 361 structive service by, publication is upon an, equal standing with a judgment upon personal. service, and it was there said : • The .affidavit in, proof fl oe; 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 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 . herein.- after described, have been fully and conStructively slim- • moiled as reqUired -by law, and' that said interested per: sons and corporations. come not -but make default"- . • 'The finding. in the eaSe at bar in the -forecloSure de: cree is .entirely different: It particularly identifies the Manner of service' in the language above set 'out. It names the newspaper in whieli the notice was published and the length of time it was' published and further recites that the caUse was submitted to , the , court uPon the coMplaint; the delinquent list and . " the 'proof of 'publication of the notice aforesaid." We think this is sufficient identification -Of the notice' and proof of publication in the 'decree itself 'to make it a :part' of the record of the prOceedings .. .in this cause; and, , whiie there is a-general finding of due ancL proper service upon all 'the owners of said lands, it is 'limited by the . ternis of the decree itself when it Undertakes to describe 'the means and' manner of SerVice . by publication. of . the notice in -a certain' newspaper and' by stating 'that the cause was . submitted upon the proof of publication ..of. -said . notice. The statute under 'which: the notice was• attempted 'to be giVen, § Crawford & :Moses' Diges .t,' requires that the notice. shall . contaiwa list ; of supposed 'Owners with a . descriptive list . of delinquent' lands and the amount due thereon from each: Since the . notice as' pnblished. failed to describe appellee!S- land, the 'court was without juris= diction . to condemn:it for sale,. and therefore correctly canceled it, unless, indeed, there is' a presiimption . that some- other or .different notice was-published.• We think
3 ' 62 UNION INVEATMhNt i CO. V. -HUNT. 4187 there is fio room for any stich presumption in this dase. The suit was filed • December 4, 1925,.and the'decree was had January 5, 1926. Within that time it would not-have hem' possible for a new publication to have 'started . and been completed before the decree. • Tfie .decree of the court was therefore cOrrect, and must be affirmed. JOHNSON, C. J., (dissenting). I cannot agree with the majoritY opinion. In my opinion the . effect of the majority opinion is to overrule a line of , deCisions Which are now considered rules of Property in this • State. The ma: jority opinion iS AO the effect that the solemn recitals of a judgment or decree may be contradicted by an affidavit. This is not the law and has never been, : in my opinion. The decree in this case reads . as follows : " That due and proper service has 13.een had upon all :the owners of said lands and real estate . hereinafter described by means and reasons of the publication of a notice of the pendency and purpose of said suit -as is repfired by, law, which notice•was published for four consecutive weekly issues in, the $r tuttgart Arkansawyer, a,newspaper of bona.fide circulation in-the Northern District of 'Arkansas County, etc.!' • . . -• The majority opinion advances the novel statement that, since the court found that the notice was published by the Stuttgart Arkansawyer, therefore any affidavit or proof .of publication filed by the.Stottgart Arkansawyer is conclusive evidence of the manner of Service. The effect of the majority opinion is that the solemn recitals .of this:decree in a :court of general jurisdiction may be . overturned, contradicted 'and nullified -by an affidavit attached to a publication. This assumption is based only upon the fact that the name of the newspaper. which published the notice happenS to appearin thwdecree. The question as to whether or not prOper service was had in this case was purely and. only a -question of fact for "the trial cOurt tip determine, and the mere fact that the decree recites that the notice was published in the Stuttgart Arkansawyer should not- open the . flood 'gates and tear doWn, nullify and contradict solemn judgments and decrees of 'conrtS Of general jurisdiction. - The only effect
UNION INi TESTAIENT 'CO. V. :HUNT. 30 of naming :the newspaper, in which. the publication .was published is 'to :name the witness :who- effected the proof of publication._ Certainly, this court would not perMit the publisher,of -this newspaper to now.make an .affidavit.that the• , Stuttgart • Arkansawyer - did liet, , publish. : any such notice and thereby. contradict,-,nullify..and . deStroy the solemn recitals,of.- this decree.;If.this :court would not permit this procedure, then:why it will permit . the .decree.to be contradicted by an ex parte affidayit made and filed in .said eauSei.S " beyond thy pOWer ' of comprehension. - • , :• . coneededly, this , is- a • collateral,.attack upon- the _decree of.the court of superior . and general 'jurisdiction... • • hi the case of 'McDonald v.. Ft..Smith)e W. 105 Ark. 5, 150 8. W. 135, this court, quoting from . the third. paragraph of the syllabus, :said :. "In the..case of a domestic judgment collaterally attacked; the question. of notice or no notice must . be tried by the court upon an inspection of the record only ; and where a judgment recites that the defendants were duly served with summons as required iby law,, it must be taken . as . true unless there. is something in the record to contradict it." , the McDonald .case .just . cited it was a. collateral attack upon the judgment . of the circuit court condemning certain lands for right-of-way purposes.. The appellant in the suit:offered to show.by an agreed statement of facts that . .";Ella I-Iare was, at: the time . of. the institution of such condemnation suit,..and, has been , continuously ever since. that -. time,: a person..of unsound :mind The 'trial court refused to admit this evidence in contradiction ,of the record.. -The court held . that this testimony , was not _admissible, for the: purpose of contradicting the :recitals of the judgment ,to the effect that due ,aud propertnotice had • . bee . n e . . given. • It was . also insisted L in, the, McDonald . case, that the record did:not disclose , ..that,Any. answer was, :filed or a defense made by. the guardian of the insane •person, and that , the . record affirmatively, showed, that an answer .was only filed by the defendant • at Gray,. administrator. This court in disposing . of .that contention said.: " Omission to appoint a guardian does not impair . the anthority of the •
-364 UNIok INVESTMENT CO. V. -HUNT. -[187 court tOproceed in the • Case, but At most is aft irregularity in. the exercise of its• lawful jurisdiction which on settled principles of. law may impregnate its jndgment with error, -but -cannot render it-absolutely null: The . effect of the omission to appoint a:guardian ad- lit em for one labor-irig under legal disability,. therefore., will not be to vitiate the judgment-oil collaterat . attack; -but to 'make it voidable only -by appeal; bi- -Other direct ; proeeeding.." '•-• • In'the caSe Of Pi4,oe 1/..dicn4a, 114 Ar1 551, 170 S. W. 247, this coUrt, cinóting frOm• paragraph orie 'of the • syllabus, said : "In A decree.. ordering the : Sale'of -land in an action foreclosing , a'tax lien, the' recital)of facts'itede-ssary .to- the , court 's jfirisdiction. are concluSiVe upon a . collateral attack." :2t • • • • - • In the . Same ease, -reading- from the fourth section , Of ' the : syllabus; :this court . said : • "In an 'action attacking a decree collaterally for . Want of • jurisdiction, the affidavit in proof of , the . publication . of the notibe Of- the pendency of the . suit is not a -part of the record from--which 'can be shown a want of jurisdiction -in the • court rendering the decree." Ih the . Price case. t . h e d , ecree -in -the foreclosure pro- ceedings which- wa g. - collaterally attacked, : reads- as felloWs " Upon cal1 of this ease it Appearing- that all per:. sons and . .corporations having-or claimiUg intereSt -in any of the land§ . thereinafter - described have Veen 'fully 'and constructively summoned as : • required 'by laW, and that said interested persons and-corporations 66m6 iiot but make defatlt." •• • • • • - In•I the g tateliient 'of facts this cenit f-Appellee atteinPtS- to shoW in • this;an entirely different proceeding, that the jUdgment of the cotirt condemning the lands -hi sale for -payment of the delinquent taxes . " was- without jurisdiction for failure . -to give : notice 'of the pendency of the suit by publication as'thelaw- requires; notwithstanding the recitals -of the ' decree that - such .notice had been duly given, by . introducing what purpOtted to be an affidavit in -proof of the publication of . suCh notice, shoWing only that it was pnblished . two : times instead of four, as the statUte provides."
UNION INVESTMENT • CO. V. HUNT. •365 In referenCe to this the court held: "The affidavit in proof of the' priblication of :the notice of 'the pendencY'of the suit is • riot a Tart of the record; hoWeVer, from , which it can he shown that there' *ivas 'Want of JurisdiCtion by the court .rendering the decree, no..mention or recital of such- proof , Of...publication; heing-,forind . therein.; Another • ffidavit or 'other , proof,. l of -the publicatiOn,,than the:one presented here • couldhave been filed:in the :oth-er case;•and it is conclusively prestimed as against this collateral attack, Oat.' the, notice : was; publish,ed ,and ; that, all .perso,ns interested , . ;were, _as : the.decree:. recites,. `;`,O p l y a110.,e9Y7 structively summoned. as required by law." , • Inthe case •of Fiddyment. v. B 97 -Ark.:77, 133 S..W..192, this , court held 'Where-an oVerdue tax decree recited:that :due, notice. was ;given , by, publication, of '.warning order as required by. law, it:will, be presumed . on .eol-lateral attack that due notice was given; though _the proof . of the' warning order was defective in failing.to show that the newspaper . in which the publication : was. inade, had a .4na fido , circulation. in the . county And , ha4 been regularly published therein for one month:before the date. of the first publication . of ; the 'warning order,. and was also defective . in failing to show. the :date . of . the second insertion : of , the warning order. . I .„,-.„: Numerous .decisions of ;this• court , might-Ae establishing: the-. rule. as , stated- in these cases.. This: Court squarely decided that the affidavit in. proof . of publication of the notice of the pendency of the suit is :not a:.part -of the.record which ,can he looked to in ,determining whether-or, not the . court . acdiuired jurisdiction of - the : subject-:matter. If ..the 'recitals of . the . decree cannot..be..contra, dicted by the . affidavit in , proof : of the publication, it is difficult to conceive just how such affidavit Ina.y , be used in ,this case to , contradict. the i solemn recitals of ;the r,ecord. It is 41y. .opinion that, th . eeffect . of this • ajority opinion, is to overrule . the case pf.-Ptice . Next it ;is sought . to,..uphold the,:decree . of . the trial .court in- -this case on the doarine . ,announced in ;Gie.§e v. ,Joxes, 185 :Ark. , 548, 48 S. W... (2d):.232.; . The decree attacked collaterally in this .case. provided The first.pub-
366 UNION INVESTMENT _CO. V. HUNT. 1187 1i:cation thereof was made on the 22d day of October, 1925 ; the second on the 29th day of October, 1925, the third on the 5th day of November, 1925, and the last on the 12th day of November, 1925." •.. • "In the decree rendered in the suit brought by the contmissioners nf District No: , 7 it is recited that the notice was published October '22, 1925, October 29, 1525, November . 5; 1925, and November : 12; 1925. • • "It tliuS appears; from . th*e face of these decrees, that the four weeks' notice required by law'had not been given in any case when . the'decreé . of sale was rendered." - The decree Collaterally atthaed 'hi ' Giese v. Jthies was rendered by the court . on Noveinber 14, 1925', and the last publication of the fourth notice occurred on Novem-ber 12, 1925 ; therefore, it appeared from the fact of the decree itself that the i r iotiCe was invalid which rendered the decree a nullity according to its own recitals. By no stretch Of iniagination can it be said* in the instant case that the Giese V. Jones case is authority therefor. I heartily agree that Giese v. Jones was rightly decided. This court in the case' of Clay 72 Ark. 101, 78 S. W. 749, held : "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." The majority opinion in this case is squarely 'hi the teeth of Clay v. Bilby, just cited. This 'court in the majerity opinion in effeet holds that, since the decree states that the publication Was made in the Stuttgart Arkansawyer, no presumption will be allowed that any other or different evidence was produced or that the fact was otherwise than as stated in the decree. This seenis to have been the doctrine aimounced by the Supreme Court of the United States in Settlemier v. Sullivan, 97 U. S. 444; but this — court did not follow the case referred- to, but on the :contrary distinguishes between'the 't*To by using the following language :-"But this is not true in case of service by pnblication. In that case, no statute forbidding, parol evidence may . be received
UNION INVESTMEN'i CO.. v. HUNT.:• 367 ' to prove Publication: of notice; and, if-the decree of judgment does not exclude the Conclusion,: the presumption is that sufficient and competent : evidence was before.the court to sustain its findings as to the publication of notice." Clay v. Bilby, supra. This cOurt in Shaw v. Polk, 152 Ark. 18, -237 S. W. 703, qiiotirig • from the third Paragraph of the syllabus, held: "A recital in a decree that the defendants had been duly served with summons cannot be contradicted in a collateral attack by prod to the .contrary." This court held in Road . bnprovement Dist. No. 4 V. Ball, 170 Ark. 522, 281 S. W. 5, quoting from the second paragraph of the syllabus : "Objection to the jurisdiction of a..court of superior jurisdiction which does not appear on the face of the record is not aVailable in a col-_ lateral attack, but only on aPPeal." The majority are perfectly,willing, to •accept as true the statement in the decree that the notice was published - in the Stuttgdri4r .kan s ' awer, hut unwilling to accerit as true the . pther . recitals,in:the deCree to .the effect that the notice was,published .in the form and manner•required by law; they permit an ex parte affidavit to contradict and nullify• this recital in' the deeree. It is immaterial whether or not this notice was published in the Stuttgart Arkansawyer; it is inunaterial -Who made the affidavit the proof of publication. This court should conclude that the trial court had before it •legal and competent testimony to establish the facts recited in the decree. . The great•weight of American authority is that the recitals of a judgment or decree of a court of superior jurisdiction are conclusive i except when directly attacked-. See case note 68 A. L. R. 390., • SuPpose the decree collaterally attacked in'thiS case had proVided ." that service was had by publication . in the form. and' mann:er. required by law," and it Was ascertained by eVidence that'but one newspaper was published ill:the county, and that this newspaper denied by affidavit that it had published the notiCe. Would this court hold that the decree could be contradicted and nullified in this Manner? I. think not; but in effect this is exactly what
this• Court is now bolding-A:conceive the , settled-law of this State to be that on collateral attack a :judgment or decree in its •recitals as to, jurisdictional matters. is • conclusive unles g it appears from the-face of the deeree . that This -a No 'Arkansas ease:is cited in support of, the rule now. . announced by this ,court,:and, I am sure that ‘ w,e are now departing from an established ; rule which has ; become a landmark • in judicial construction and ..interpretation which almost amounts to a rule of property.' For these reasons I respectfully: dissent.,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.