198 SWARTZ V. DRINKER. [192 SWARTZ V. DRINKER. 4-4146 • Opinion delivered February 10, 1936. 1. ACTION—CO MMEN • CEMENT.—An action is • 'commenced against a resident when a complaint is filed and summons is issued and placed in the sheriff's hands for service, as provided by Crawford & Moses' Dig., § 1049, 2. PROCESS—NONRESIDENT DEFENDANT.—When the provisions of Crawford & Moses' Digest, § 1157, are complied With and the papers mentioned therein are returned and filed, ihis is deeined an actual service of summbns on a nonresident defendant. 3. PROCESS—CONSTRUCTIVE SERVICE.—When a nonresident is constructively summoned, as a prerequisite to the warning order, the affidavit prescribed by Crawford & Moses' Dig., § 1159, must be made, and the action is commenced when the warning order based thereon is issued. 4. PROCESS—CONSTRUCTIVE SaRVICE.—The. statutory requirements as to constructive service of process on nonresidents must be strictly complied with. 5. ACTION—ANOTHER SUIT PENDING. A plea of another action pend: ing is insufficient which alleges• pendency of another action against a nonresident party but failS to allege compliance with the requirements of Crawford & Moses' Dig., §§ 1157-1159. Appeal from Sebastian Chancery Court, Green-Wood District; C. M. Wofford, Chancellor ; 'affirmed. Suit by Sophie H. Drinker against H. H. SwarU and W. R. Webb. Judgment for plaintiff,-from which defendants appeal. • Festus Galan?, and Fads & Rowe, for appellant Hardin & Barton, for appellee. BUTLER, J. The appellee is the 43vner of a valuable . mineral right in certain lands situated in Sebastian County, and brought the instant proceeding in the Green-wood District of the Chancery Court of said county to cancel tax deeds issued by the Commissioner of State Lands by which said mineral right was conVeyed to the appellants, the State claiming title through an alleged forfeiture for the nonpayment of taxes levied against them. The appellee alleged that the forfeiture was void for a number of reasons set forth in the complaint, any one of which, if true, was sufficient to avoid the Commissioner's deed. She further alleged that she was in pos-
ARK.] SWARTV.• DRINKER. 199 session of the. lands at• the time of the alleged forfeiture, and had been continuously since that dine. The, appellants answered without setting up any defense to , the action, and Without , denying any of the allegations of the complaint,.but merely . stating that the apPellants had 'sued the appellee , and others• in the circuit court of the . Greenwpod District of Sebastian County for , damages: and for , possession of the lands, and that that,snit was , still'pending. The . Court treated the appellant's answer , as a:motion to disiniss . the complaint, and overruled the same. To this action , of the ,court the appellants objectek saved,theif excePtions, and refused to plead further. .The appellee, thereupon, .anneimced ready for trial. • The Case. was ,accordingly submitted, and the coUrt, after reciting the , answer filed, its . being treated as a. motion to dismiss, , etc., • and "after . hearing the testi-mo , ny offered; in the' case, *,•:* ,* being well and suffi-mently adVised 'in the preinises, found the issues- for the (aPpellee) plaintiff." The court then made specific findings of fact :with reference to the allegations of the complaint,: and decreed that the forfeitures were null and void,' and , also the . deed . issued , to the appellants . by the commissioner.. .The. court further decreed that the said deed be canceled, and that the title of appellee be quieted as against the..appellants, • The' -sole cOntention i of the 'apPellants for reVersal is that the chancery court was . without 'jurisdiction because Of the. Suit* pending in the' 'circuit court. , • The pleading
tendered waS not sufficient Ao establish the contention. It, merely reCited "that there is a suit Pending in the circuit 'court of' Greenwood' District-of 'Sebastian County, Arkansas, filed •mi the 21st day of • February, 1935, wherein.W. R. Webb is .Plaintiff and Sophie H. Drinker
and others are defendants, which is a suit in ejectment
involving the same titles, and between the same parties as are involved in'this• suit, a copy of which complaint is
attached hereto, andinade . a part hereof marked 'Exhibit There appears to he • no affidavit for warning order indorsed on the complaint, or; any indorsement of suna-mons issued.:'• Neither does there aPpear elsewhere in the
200 SwART2; v. DRINKER. [192 record any reference to issuance of summons or proceedings had for warning order except the following : "STATEMENT OF SUMMONS "Summons issued of the 21st day of February, 1935, for Sophie H. Drinker, and mailed to the sheriff of county of Philadelphia, State of Pennsylvania, and returned with the following affidavit : " 'State of Pennsylvania, County of Philadelphia : • " 'Personally appeared before me, Francis M. 'Con-nor, notary public, in and for said Philadelphia County, Matthew K. Yates,- who, being duly sworn, says that he is a deputy sheriff for Richard Weglein, sheriff of Phila-delphia County, Pennsylvania ; that the within summons and complaint was placed in affiant's hands for service, and that he made diligent search and inquiry for 'Sophie H. Drinker, by inquiring. at 1429 Walnut Street, city of Philadelphia, State of Pennsylvania, and was unable to find Sophie H. Drinker up to and including June 18, 1935 ; and that Sophie H. Drinker could not be foUnd within the county. • `Matthew K. Yates. " 'Sworn and subscribed before me this 18th day of June, 1935. Frances M. Conner, Notary Public. " `My commission expires, November 16, 1935.' " (Seal) "STATEMENT AS TO WARNING ORDER "Warning order issued : May 25, 1935, against defendant, Sophie H. Drinker. "Published in 4 consecutive isSues beginning May 30, and ending June 20, 1935; in the Greenwood Democrat, a newspaper published in said county and district. "PrOof of publication sworn to : June 20, 1935." We gather from the "statements" copied supra that Mrs. Drinker, the defendant in that suit, and the appellee here, was a. nonresident of the State, although no such allegation appears in the complaint. In order for suit to be instituted against a resident, it is necessary that the complaint be filed, a summons thereon issued and, placed in the hands of the sheriff for service ; as to nonresident defendants, before the case can be said to be pending the provisions of either §§ 1157
ARK.] SWARM V. DRINKER. 201 and 1158, Crawford & Moses' Digest, or § 1159, id., must be complied with. Section 1157, supra, provides that where a defendant is out of the State, a copy of the complaint certified by the clerk with summons annexed warning the defendant to appear and answer within thirty days after the same is served on him may be served upon said defendant anywhere in the United States by some person to whom he is personally known. Proof of the delivery is made by the affidavit of the person making it indorsed on, or annexed to, the certified copy of complaint and sunimons, in which the time and place of delivery, and the fact that the defendant was personally known to tbe affia.nt shall be stated. The officer, before whom the affidavit is made, shall certify that the affiant is personally known to him and worthy of credit. Section 1158, supra, is to the effect that when the provisions of § 1157 are complied with, and the • papers mentioned in the above section are returned . and filed, this is sufficient and deemed an actual service of the summons. The "statement of summons" hereinbefore copied fails .to show a compliance with the provisions of §§ 1157 and 1158. Where a nonresident is constructively served,, as a prerequisite to the warning order, the affidavit prescribed by § 1159 must be made, and it is only where the affidavit haS been made, and the warning order based thereon issued that the action can be said to be commenced or the cause pending. Boynton v. Chicago Mill c0 Lumber Co., 84 Ark. 203,105 S. W. 77 ; Holloway.v. Holloway, 85 Ark. 431, 108 S. W. 837. We think it clear from the effect of our decisions that a strict compliance With the requirements of the statutes, cited srupra, is required, and, if there is not such compliance, no action is pending. Missouri Pac. By. Co. v. McLendon, 185 Ark. 204, 46 S. W. (2d) 625. - Other questions are argued by counsel for appellee which we fmd it . unnecessary to notice. It is our conclusion that the pleading tendered failed to sufficiently 'allege the pending of the cas . e in the circuit court, and thgt therefore the judgment, aild the • d'ecroo of the . court
202 ,[192 dismissing the appellants' answer, and granting the relief prayed by appellee was correct; 'Affirmed. .
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