ARK.] HONEA V.. FEDERAL LAND BANK OE ST. Louis. 619 HONEA V. FEDERAL LAND .BANK OF ST. LOUIS.. 4-3140 Opinion dehyered June 19, 1933 1. CONSTITUTIONAL LAW—DETERMINATION OF CONSTITUTIONAL QUESTION.—Courts will not pass on a. constitutional question unless; a decision on that point is necessary toa determination of the case. 2. MORTGAGES COIVFIRMATION OF SALE 7--FIRST ThkEE DAYS ' OFdOUtt.T. —Where the' regular term of court' began 'On March 6th, and On that day the court adjourned 'till-May 5th billowing, oh which day a mertgage foreclosure' : Sale was tonfirfned, such cOrifirmition was valid as made ori the secohd day of the term, and therefore within the "first three clays" .of the -term as provided hy Acts • 1933, No. 21, § 2. Appeal from 1-lempstead Chancery :Court ; . Pratt P. Bacon, Chancellor; affirmed. L. F. Monroe, for appellant. E. F. McFaddin, for appellee. • Trieber Lasley, amici , curiae. • • SMITH, J . Appellants, owned a tract of land, which was ordered sold under a decree of the . Hempstead Chaii--eery Court foreclosing a mortgage thereon which they had given to appellee. There was a sale of the land as
620 HON'EA-V. FEDERAL LA-ND' BA-N-K OF ST. LOUTS-. [187-directed by the deeree, nnd . the report - of . the commissioner who had made the sale came on for confirmation at the ensuing term of . the court. Appellants filed objections to tbe confirmatiOn of the report reading as- follows: - " The defendants admit the indebtedness, and admit .the foreclosure decree was validly tendered, - and the sale validly cOnduCted, and that the plaintiff - bid the full debt; interest and costs, .and that there iS no deficiency judimeht, and that the PropertY brough't its fait valne. 'But the defendants except and object .to' the, .approval of this- sale . at this Jime because, of act i 21 of the Acts of the General Assembly of the State of Ar-kansas :of 1933, which act was duly and validly passed, and had a due and .valid emergency clause, and became the law of Arkansas immediately upon its passage and approval, and signing by the Governor ; and that the said law was validly passed, aPproved, and signed by the Governor- of Arkansas on the 9th day of February, 1933. " These defendants state that under the said act of the Legislature it is provided in § 2 -that decree confirming sales shall only bnrendered during the first three days-of the regular- term of court-as fixed by law; that the' regular term of . -the Hempstead Chancery Court was ..O . nythe first Monday in March, , 1933, whiCh day was the th . -,s7 . -:of March, 1933 , -• and that the -Hempstead Chan-eery Court was duly-in session that day, and on that day duly adjourned until May 5, 1933, and was not in session in Hempstead County on March 7th or March Sth, 1933; and that now this sale comes on to be apip roved on the 5th day of May, 1933, which is an adjeurned day of that court. ; -and therefore the sale should not- be approved at this time. "Wherefore, defendants except and object to the approval of the sale." • . Section 2 of act 21,- above referred to, reads as follows : " Section 2: On account of the congestion of court dockets by fOreclo sure suits, and to provide time for trying other cases, foreclosure decrees, and decrees con-'firming foreclosure sales shall only be rendered ditring
ARK.] TIONEA V. FEDERAL LAN .DI BANK OF ST. Louis. 621 the first three days of the • regular ierM of the court as fixed by law." - •• 'Upon hearing the • objections to' the 'cOnfirmation of the report of sale, the following fact'S' Weté made to apPear. : The regular . March, 1933, terrn Of the Hempstead-Chancery Court cOnVened • on the first MondaY in .March, 'Which was March 6; 1933, and-the daY appointOd by law for the. cenvening of that term Of COurt. After being in session the-dare& March 6th the'-court . adjOurned until May '5, 1933. Oh 'MarCh . 7th the chancellor Of :the' -district held • an' adj6i-trned*seSSiOn Of the' NeX r ada- Chan-derY Court,' and 'on- March 8th -an .adjourned '§ession- of the Clark Chancery COurt -Wa. s held. On:May 5th the coUrt returned tO coiitinne the March :turn Ihellempstead -ChancerY COurt,14rStiant . tir the 'adjourning' order 'above mentioned, and tin that' day the' COMMiSSiOner's -report of the sale of appellant's land was' heard and . confirthed, over the objections and exceptions Of apPellantS. For the:reversal of- this decree; it is' insisted- that May 5th was not one of the first three days of the regular tern . of the HenipStead ChancerY • Court within:the meaning of § 2 of act 21 of the 'Acts of 1933: Appellee insists, for the affirMance of the' decree, not only that May 5th-was one of the firstI three daYs 'of the regular feria, but it is insisted also . that'itis immaterial'whether this is true or -nOt, fOr the yeasori t tharthe entird aet,lof -which 2 • is a part; is unconstitutional; as'inipairing-the obligation of . the contract . evidenced by -the -Mortgage •which' the -decree. had', ordered' foreelosed. '• • • • Very interesting ... and 'able brief§ were:filed On 60 question Of the Constitutionality of the, : act hY opii_osing Counsel; but we' do hot 'find it necessary 'to deCide that questiOn'te . di* SPose Of . this apPeal.'' . If ha's long heen- the rule of this and other dourts net 'to pass' oil tional question unle§s a decisiOn On that peint is nèdes-sary to a determination".of the Onse. -Th6 rule' and the reason therefor Was stated in the cm : 67a Smith v. G' arret-son, 176 Ark. 834, 4 S. W. (2d) 520; as follows: `Jn Ry. Co. Smith, 60- Ark. 221:240, •9 S. W. 752454, Judge BATTLE, speaking :for the court , quoted • -from Judge
622 HONEA V. FEDERAL LAND BANK OF ST. LOUIS. [187 Cooley on Constitutional Limitations, p. 231, paragraph 2, as follows : 'Neither will a court as a general rule, pass upon- a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both proper and more respectful to a coordinate department to . discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra judicial disquisition is entitled. In any case therefore where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration nntil a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.' Such has been the unvarying practice of this court. See also Martin v. State, 79 Ark. 236, 96 S. W. 372 ; Sturdivant v. Tollett, 84 Ark. 412, 105 S. W. 1073 ; Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231, 110 S. W. 1031." • It is not essential to the decision of the question presented on this appeal to determine whether act 21 of the Acts of 1933 is valid and constitutional, for the reason that there has been no violation of its provisions in the confirmation of the report of the commissioner's sale. May 5, 1933; was one of the first three days of the session of the March term, 1933, of the Hempstead Chancery Court, being the. second day thereof. March 7th the court was in session in other counties in that chancery district on those days. Appellants cite § 1208, Crawford & Moses ' Digest, as sustaining their contention that May 5, 1933, was not
ARK.] HOEA v. FEDERAL LAND BANK OF ST. LOUIS: 623 a ' day of the regular 1 March term of the court. ThiS section ; -read§ as -folloWS : " -Thea defenSe to any complaint or wess-Ctimplaint Must be filed beföre noon of the-first daY the court meets ih regular or adjourned session after service: "First. Where the summons has been served twenty days in any county in the State. 'Second. Where the -sunimons has been serVed thirty days outside of the State. "Third. Ih the case of constructive service, where publication Qf the warning .order has been made as required by law and thirty days has elapsed since the making of : the order and the appointment of ;the . attorney ad litem." . We do not interpret this statute as furnishing any support to appellants' contention. This section provides the time within which service becomes complete, depending upon the manner of service, the obvious purpose thereof being to permit the court to, hear_ any . eause in which the service has- ripened - and ,become complete; whether before: a regular or an adjourned session ,of a term,of court. Section 2112, Crawford & Moses' Digest, reads -as follows:, Special adjourned sessions . of ;any court may 'be held. in continuation of the' regular. term, upon its being So ordered by the:court or judge in term time, and entered by the clerk on the record of-the court.'! The record in this case shows affirmatively that the court ordered-a session of the March term to be held on -May 5th, and , :that day was : the second day :of the term. We do not interpret the -pbra.se, "first : three daYs," appearing in § 2 of act 21 to-mean the. first three Calendar days, but, rather, to mean the first three days - the,court is in session. : . rr It was held 'in the'case of Dwnin . v. State, 2 Ark. 229, (to quote . a headnote in that case) that : ' "All ceurts unless restrained by some statntory proVision, 'have the right of adjourning their - sittings to a distant day'; and the proceedings had at the adjourned- session will be considered as' the proceedingS of the term so adjourned."
624 HONEA V. FEDERAL- LAND BAN-R. OF ST. Louis. [187 In the subdivision, ." Terms. and ,Sessions," .of--the chapter on , Courts in 15 C. J.-, page .875, _it is said at §.219 thereof " Terms of court are -yery generally classified into regular •terms and . special terms. A regular term of court is one held at . a time and place fixed once and for . all ; and a special , term is one called or. appointed for a particular purpose, being a term separate and . distinct from the regular term and not a continuation thereof after adjournment. A special term .is distinguished from the regular or general terms only in the date or time that if is convened or held; unless the expression has sonie other local significance. 'As a general rule, when a statute speaks of terms of,court, , the • terms con, stittited by law, and not special terms, -are mearit, although it has been held that a statutory provision requiring . issues of fact in criminal actions to be tried at a 'regular term' did not intend . to discriminate between a regular term and a special or called term - at which a jury was convened.' Numerous definitioOs • of . the phrase . "Regular Term 5' appear in Words and Phrases, First, SecOnd and Third Series, and,- among others, the following: • "A regular term 'of court is 'a term begun at the' time . appointed by law, and continued at the discretion of • the couit' to such time as it may appoint, consistent' with the law:' Wightman, v. Karmer, 20 Ala. 446." Words and PhrageS, Pirst Series, volume.7, p: 6040. • • • . "When the coOrt reconvenes after h, 'recess of a few days or weeks, it is a regular, and 'not a special, session, distinct from the regular term.. Carter v. State, 80 E. 533, 534; 14 Ga. App. 242. " 'Regular' terms • of court 'are :those beginning*.at certain, dates fixed by law, or by the judge in conformity . with authority of law, as distinguished from 'special . terms,' which are held at other times than those . fixed . hy law, or which may be called by- the judge in his diScretion. Glebe v. State,183 N. W. 295-296, 106 Neb. 251." Words & Phrases, Third Series, volume 6, page 650... We conclude therefore that May 5, 1933, was the second day of the March,. 1933,, term of the. Hempstead
Chancery, Court, and that there was and_is no inhibition in §,-2. of act 21.prohibiting. the ;court from hearing and confirming a commissioner's • report of sale at that time. • The decree must thefefore be affirmed, and it is .so ordered.
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.