Nelms v. Orne

187 S.W. 322, 124 Ark. 219, 1916 Ark. LEXIS 34

Opinion

Wood, J.,

(after stating the facts). It appears from the agreed statement of facts that the appellee was in possession of the land in suit and claiming title thereto under a decree of the chancery court of Crittenden County condemning the land to be sold for delinquent levee taxes. The suit by the appellant was a collateral attack on that decree. She contends that inasmuch as she was a minor under fourteen years of age and a nonresident, and that inasmuch as her guardian, who was a resident, was not made a party to the suit as her guardian and served as such, that the court by the order of publication acquired no jurisdiction to condemn her lands, and that the sale was therefore void. She admits that she has no title to the part conveyed to her by her. brother.

The suit to condemn the land for levee taxes was brought under the Act of 1895,

Footnotes

•

* amending the Act of 1893.† This court in several cases has construed that act, holding that the proceedings were in the nature of proceedings in rem, and that where a decree is rendered upon a complaint properly describing the lands and where the nonresident land owners are constructively served, by warning order as prescribed by the statute, in which the lands are properly described, the court has jurisdiction to enter a decree condemning the lands to be sold for the delinquent levee taxes.

In Crittenden Lumber Co. v. McDougal, 101 Ark. 390, we said: “By such notice, all nonresident persons having an interest in the land are warned of the pendency of the suit and are concluded thereby, whether they are made parties to the suit or not. It is, therefore, not necessary to name the true owner, in event he is a nonresident, either in the complaint or in the notice, and the decree entered upon snch notice is not open to collateral attack by reason of the' failure to name the true owner either in the notice or to make him a party to the suit. Notice is sufficiently given to every one who is a nonresident and has any interest in the land by the description of the land which is proceeded against, and which is set out in such notice.”

And further on in the same case, speaking of the service by publication, we say: “If the land is duly described in such published notice or warning order, it is sufficient to give the court jurisdiction over all nonresident persons who have any claim whatsoever in said land, although it is noted as belonging to one who actually has no interest therein, in event such land is actually owned by a nonresident.” See also Ballard v. Hunter, 74 Ark. 174; Pattison v. Smith, 94 Ark. 588.

But appellant contends that these eases have no application for the reason that the complaining nonresident land owners in those eases were adults, and that inasmuch as'appellant was a minor under the age of fourteen years she had to be served under the provisions of section 6049 of Kirby’s Digest, which provides:

“Where the defendant is an infant under the age of fourteen years, the service must be upon him, and upon his father or guardian, or, if neither of these can be found, then upon his mother, or upon any other person having the care or control of the infant, or with whom he lives. Where the infant is over fourteen years of age, service on him shall 'be sufficient.”

But the acts under which the land in controversy was condemned are all comprehensive, and, as construed by the court, the notice there prescribed was to be the only method of service upon nonresident land owners. The statute makes no exception as to infants and the courts can make none. As it is in the nature of a proceeding in rem, no reason is perceived why personal service should be had upon the infant or his natural or statutory guardian. Section 6049, supra, has no application here, and this ease is ruled by tbe above cases.

While tbe agreed statement shows that appellant had a guardian who was a resident of Crittenden County, it does not show that the lands were occupied by him. He was made a party to the suit a3 an individual, presumably for the reason that he was also an owner of some of the lands sought to be condemned.

The decree of the chancery court being correct on the merits, we pretermit a discussion of the question as to whether there had been an abandonment of the suit by the appellant.

The decree is therefore affirmed.

Act. 71, p. 88, Acts 1895.

•

Act 19, p. 24, Acts 1893. (Rep.)