Neely v. Lee Wilson & Co.

190 S.W. 431, 126 Ark. 253, 1916 Ark. LEXIS 267

• Court: Supreme Court of Arkansas
• Decided: December 11, 1916
• Status: Published

Opinion

Humphreys, J.

(after stating the facts). It is strenuously insisted that the foreclosure decree should be cancelled and appellant restored to the possession of his property, for the reason that no service was had upon him in the foreclosure suit.

(1) . Appellant is confronted with a return by the sheriff, through his deputy, that he was served in this case. In addition, Mr. S. L. Gladish testified that Neely employed him in the ease and that he did represent him for a time. The decree itself recites that appellant at the time of its rendition, excepted to the ruling of the court and prayed an appeal to the Supreme Court, which was granted. There are other circumstances tending to show that appellant had been served. The sheriff and his deputy are now dead and cannot testify. Neely himself denies service and is corroborated in his statement to some extent by Jennie Neely, who was his constant companion. In the case of Holman v. Lowrance, 102 Ark. 255, the court said: “The officer’s return of service is prima facie true, and the chancellor found, upon conflicting evidence, that appellant was duly notified of the pendency of the suit * * We think on the question of service, the instant ease a stronger one than Holman v. Lowrance. The finding of the chancellor that service was had upon him in the original foreclosure suit is sustained by the weight of the evidence.

(2) . The insufficient description of the lands complained of by appellant relates to the original proceedings establishing the drainage district. It was appellant’s duty when made a party to the foreclosure suit, to set up all his defenses against the organization of said drainage district. The errors and irregularities in the original organization of the district are not matters for consideration in this bill of review. .

We do not understand that any contention is made that the description of the land in the foreclosure decree is insufficient. The description of said real estate in said foreclosure decree is definite and certain.

The statute of Arkansas provides that judicial sales must be on terms of credit, “not less than three months.” Kirby’s Digest, Sec. 6236. The foreclosure decree failed to specify the terms upon which the land should sell. Counsel for appellant claims that Fry v. Street, 37 Ark. 39, is a case on all fours with the case at bar. That is a direct appeal from the decree of foreclosure before the sale was made, reported and confirmed. In the case at bar, the land was sold on three months’ credit and the sale was reported and confirmed. The appellant appealed from the foreclosure decree, but failed to prosecute his appeal. The eases are quite different.

(3-4). Jurisdictional errors in a decree ordering the sale of land, cannot be cured by confirmation of the sale. The failure to set out the terms of sale in a decree is in no sense jurisdictional. All irregularities not jurisdictional will be cured by confirmation of the sale. The confirmation of sale in the case at bar cured this defect. There being no error in the findings and decree of the chancellor, the decree is in all things affirmed.