King v. Dickinson-Reed-Randerson Company

Hart, J., (after stating the facts). The chancery court did not err in refusing to set aside the decree of foreclosure on the ground that Henry King and wife had not been properly served by publication of warning order. The foreclosure suit was brought by Dickinson-Reed-Randerson Company, a corporation.' In the affidavit for a warning order, and in the warning order itself, that corporation is named as plaintiff. The proof of publication of the warning order names the plaintiff as Dickinson-Reed-Henderson Company, a corporation. Hence it is claimed that there was no valid constructive service on the defendants. A sufficient answer to this contention is that no meritorious defense to the foreclosure suit is set up in the motion to set aside the decree. This court has expressly held that, on application by a defendant constructively summoned to set aside the decree, a meritorious defense must be shown by him. Moreland v. Youngblood, 157 Ark. 86. Then, too, the foreclosure decree recites that Henry King and wife were duly notified of the nature and pend-ency of the action by publication of warning order, and the usual presumption which attaches to this finding in a decree must be had. Because there is no statute forbidding it, parol evidence may be received to prove the publication of the warning order, and this carries with it the right of the court to hear parol testimony to amend the proof of publication. Hence it will be presumed that competent evidence was ¡before the court to sustain the finding that Henry Rung and wife were duly notified of the pendency of the suit by publication of warning order. In short, it will be presumed that the court heard oral evidence, and amended the proof of publication of the warning order to show that it had been published in. the name of Dickinson-Reed-Randerson Company, a corporation, instead of Dickinson-Reed-Henderson Company, a corporation. Fiddyment v. Bateman, 97 Ark. 76, and Wallace v. Hill, 135 Ark. 353. It is next insisted that the court erred in refusing to set aside the foreclosure decree, because the bond required by § 6261 of Crawford & Moses’ Digest was not given. It is conceded that this section was amended by the Legislature of 1923, in which it . was provided that such bond should not apply to a mortgage foreclosure decree. General Acts of 1923, p. 551. But it is claimed that this section could not be made to apply to foreclosure decrees where the mortgage was executed before the passage of the amendatory act. In this respect counsel liken it to the right of redemption - in a mortgage foreclosure decree. In such cases it has been held by the Supreme Court of the United States that a State statute which allows the mortgagor a specified length of time after a sale under a decree of foreclosure to redeem, confers a substantial right, and thereby becomes a rule of property. The holding proceeds upon the theory that the right of redemption which exists at the time the mortgage is executed becomes a part of the contract, and that, to deprive the mortgagor of this right by a statute subsequently passed, would impair the obligation of the contract. Brine v. Insurance Co., 96 U. S. 627, and Parker v. Dacres, 130 U. S. 43. The giving of the bond in question did not confer any substantial right or equity upon the nonresident defendants. It was merely a method of procedure. Such statutes do not affect the substantial rights of the parties, but are intended to confer a method of procedure in dealing with existing rights. The forms of administering justice and^the powers of courts in this respect are subject to the legislative will, and one Legislature cannot bind subsequent Legislatures in this respect. The requirernent or non-requirement of a bond by the plaintiff in the case of a defendant constructively summoned is, in the very nature of, things, remedial and not contractual. In this respect the principle to he applied is like that in Brown v. Creekmore, 141 Ark. 512. It was there held that an act of the Legislature defining a counterclaim applied to suits pending at the time of its passage, as there can be no vested right in a mere remedy. It follows that the decree must be affirmed.