Price v. Gunn

Kirby, J., (after stating the facts). It is contended that the decree of foreclosure of the lien, and, the sale thereunder, of the land for delinquent taxes, are void because an affidavit in proof of the publication of the notice of the pendency of the suit shows it was published twice only instead of four times, as the law requires, and ■because of appellant ’a attempt to pay the taxes in proper time and failure to do so by reason of the collector’s mistake. The decree in the foreclosure proceeding recites: “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.” Tbe commissioner’s sale for tbe collection of delinquent taxes in tbe drainage district under wbicb appellant claims title, was made under Act 111 of tbe Acts of 1907, section 7 of wbicb provides: “Notice of tbe pendency of such suit * * * (for tbe foreclosure of tbe lien) shall be given by publication weekly for four weeks prior to tbe day of tbe term of court on which final judgment may be entered for tbe sale of tbe land, in some newspaper published in tbe ¡county where such suit miay be pending.” (1) The court acquired jurisdiction under the law for enforcing the payment of the delinquent levee taxes by foreclosure of the lien upon the publication of the notice of the pendency of the suit as provided in said act, and its decree recites that all parties interested in the lands described and proceeded against “have been duly and constructively summoned as required by law. ’ ’ This was a fact necessary to be found by the court in order to establish its jurisdiction .and its finding and the recital of the decree that all parties “have been duly and constructively summoned as required by law” is conclusive of the fact upon a collateral ¡attack. McLain v. Duncan, 57 Ark. 49; McConnell v. Day, 61 Ark. 464; Porter v. Dooley, 66 Ark. 1; Porter v. Tollman, 68 Ark. 211; Palmer v. Ozark Land Co., 74 Ark. 253; Pattison v. Smith, 94 Ark. 588. Appellee attempts to show in this an entirely different proceeding, that tbe judgment of tbe court condemning the lands to sale for payment of tbe delinquent taxes was without jurisdiction for failure to give notice of tbe pendency of tbe suit by publication as the law requires, notwithstanding tbe recitals of tbe decree that such notice bad been duly given, by introducing what purported to be an affidavit in proof of tbe publication of such notice, showing only that it was published two times instead of four, as tbe statute provides. (2-3) The decree attacked makes no mention of this affidavit or proof of publication of notice, and its recitals relative to the publication are conclusive and can not be impeached in this proceeding. This is but a collateral attack upon a judgment of a domestic court of general jurisdiction and “it is well settled that every presumption will be indulged in favor of the jurisdiction of such court and the validity of the judgment which it enters and, unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of such court do not exist, such collateral attack against the judgment rendered by it will not prevail. A judgment or decree entered upon constructive service, by publication will be given the same conclusive effect and is entitled to the same favorable presumptions as judgments on personal service.” Crittenden Lbr. Co. v. McDougal, 101 Ark. 395. (4) It is true that a judgment may be attacked collaterally where “by the record it is shown that there was want of jurisdiction by the court rendering it, either of the subject matter or of the person of the defendant.” The affidavit in proof of 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. Another affidavit or other proof of the publication than the one presented here could have been filed in the other case and it is conclusively presumed, as against this collateral attack, that the notice was published and that all persons interested were, as the decree recites, ‘ ‘ duly and constructively summoned as required by law. ’ ’ (5) The evidence is not sufficient to show such an attempt to pay the taxes levied against the property ias. would prevent a forfeiture, or its being returned delinquent and sold for the failure to pay. Appellee Gunn testified that he lived in Rector and, desiring not to go to' Piggott for the purpose of paying his taxes, asked O. A. Cargill, the county treasurer,. to see the collector and have him to make out the receipt for his taxes -and send it to the Bank of Rector for collection. That he mailed him a list containing the numbers of !his property and the tax receipt came to the Bank of - Rector and he paid it and did not examine it, nor know that the lots in controversy were not included in the receipt, till this suit was brought. He produced a slip of paper containing the correct numbers of these lots, with others, and -said it was pinned to the tax receipt when he paid the money and got it from the bank. Car-gill testified that -a list was mailed to him that looked like the one produced, -but he couldn’t say if it was, and that he turned it over to the collector with directions to issue the receipt and mail it to the Bank of Rector for collection. The -collector did not testify. There was nothing to prevent appellee from examining his tax receipt to ascertain if it contained all his lands, and the negligence or carelessness of others who were accomodating him in the matter will not relieve against his own in failing to do so. It follows that the chancellor erred in dismissing the complaint and cancelling appellant’s deeds and the decree is reversed and the -cause remanded with direction to enter a decree awarding the possssion of the lands described to appellant.