Johnson v. Lesser

Supreme Court of Arkansas

Johnson v. Lesser

91 S.W. 763, 76 Ark. 465, 1905 Ark. LEXIS 141

CourtSupreme Court of Arkansas

DecidedJuly 29, 1905

StatusPublished

Cited by6 cases

This text of 91 S.W. 763 (Johnson v. Lesser) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnson v. Lesser, 91 S.W. 763, 76 Ark. 465, 1905 Ark. LEXIS 141 (Ark. 1905).

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Opinion

Riddicic, J.,

(after stating the facts.) In this case the heirs of Ben Johnson seek to set aside and declare void a foreclosure decree rendered against Ben Johnson and wife while they were non-residents of the State, and to compel the defendant to account for the rents and profits arising from the land purchased under the foreclosure sale. ° The service upon the defendants in the foreclosure decree was by publication, and the contention of the plaintiffs is that the forclosure decree was void on account of want of jurisdiction over the persons of the defendants. One. objection urged on the hearing was that proof of publication was not made in the mannér required by the statute, but counsel now concedes that this question has been decided against him by a recent decision of this court, where it was held that when a warning order has been duly published, the failure to make proof of such publication in the manner required by statute is an irregularity that does not affect the jurisdiction of the court, and cannot be considered in a collateral proceeding. Clay v. Bilby, 72 Ark. 101.

The only remaining contention is that the judgment against the non-residents was void because the clerk did not indorse the warning order upon the complaint as the statute requires. But this also was an irregularity that did not injure the defendants or affect the jurisdiction of the court. Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252; Clay v. Bilby, 72 Ark. 101.

On the whole case, we are of the opinion that the judgment should be affirmed, and it is so ordered.

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Riddicic, J.,

(after stating the facts.) In this case the heirs of Ben Johnson seek to set aside and declare void a foreclosure decree rendered against Ben Johnson and wife while they were non-residents of the State, and to compel the defendant to account for the rents and profits arising from the land purchased under the foreclosure sale. ° The service upon the defendants in the foreclosure decree was by publication, and the contention of the plaintiffs is that the forclosure decree was void on account of want of jurisdiction over the persons of the defendants. One. objection urged on the hearing was that proof of publication was not made in the mannér required by the statute, but counsel now concedes that this question has been decided against him by a recent decision of this court, where it was held that when a warning order has been duly published, the failure to make proof of such publication in the manner required by statute is an irregularity that does not affect the jurisdiction of the court, and cannot be considered in a collateral proceeding. Clay v. Bilby, 72 Ark. 101.

The only remaining contention is that the judgment against the non-residents was void because the clerk did not indorse the warning order upon the complaint as the statute requires. But this also was an irregularity that did not injure the defendants or affect the jurisdiction of the court. Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252; Clay v. Bilby, 72 Ark. 101.

On the whole case, we are of the opinion that the judgment should be affirmed, and it is so ordered.

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91 S.W. 763, 76 Ark. 465, 1905 Ark. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-lesser-ark-1905.

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