#### Stith v. Pinkert.

4-9297

234 S. W. 2d 45

Opinion delivered November 13, 1950.

Rehearing denied December 11, 1950.

*872 J. R. Booker and Tilghman E. Dixon, for appellant.

Wm. J. Kirby and Z7. A. Gentry, for appellee.

Dunaway, J.

For the second time the question of appellee Pinkert’s title to the west % of lots 1 to 6 inclusive, block 8, Adams Addition to the City of Little Rock, Arkansas, is before this court. The first case was Pinkert v. Lamb, 215 Ark. 879, 224 S. W. 2d 15.

In the Lamb case, the litigation was between Ed Pinkert and Ella Stith, widow of J ames H. Stith. Pinkert claimed title through mesne conveyances from Sewer Improvement District No. 94 of Little Rock. The District had purchased the property at a commissioner’s sale held pursuant to a decree of the Pulaski Chancery Court rendered November 23, 1937, condemning said lots to be sold for delinquent assessments for the year 1934. Ella Stith claimed in a collateral attack on the foreclosure decree and sale thereunder that thev were void for various reasons.

We upheld the validity of the foreclosure sale of the property to the district in the former case and reversed the Chancellor’s decree to the contrary. One day before the mandate was issued by this court in that case, the instant suit was begun by appellants herein, Herbert Stith, James H. Stith, Jr., and Melanie Stith Tabor, the *873surviving children and heirs of James H. Stith, deceased, who died in 1942. All three appellants are nonresidents of the State of Arkansas and have been for many years.

The first action, later transferred to equity, had been begun as one in ejectment by Pinkert against John Lamb, alleged to be in possession of the property as tenant of James H. Stith. At the first trial it was stipulated that Ella Stith was the record title owner prior to the sale of the lots to the District and that she held possession through Lamb as tenant.

It now develops that Ella Stith had only a dower interest in the property and that appellants herein, owners of the fee as heirs-at-law of James H. Stith, had not been made parties to the first action. The stipulation had evidently been made by counsel under a misapprehension of the facts, in an effort to .expedite trial of the cause when it was shown that James H. Stith was deceased.

In the instant case, the Stith heirs sought cancellation of Pinkert’s deed and an accounting of the rents and profits from the property. They joined as defendants Pinkert and one Sehuman, alleged to be tax-title speculators, the receiver of District No. 94 and the Board of Commissioners of said District, certain parties who had collected rents from the property and Ella Stith, mother of one appellant and step-mother of the other two. Only Pinkert and Sehuman answered or appeared.

The complaint alleged all the same grounds of invalidity of the foreclosure and sale as were presented in Pinkert v. Lamb, supra, together with certain new matters. It was alleged that the foreclosure decree was void because James H. Smith, rather than James H. Stith, had been named as owner in the complaint filed against the property by the District; and because this same mistake was made in naming Smith as the owner in the warning order or published notice of pendency of the suit. In addition to these two defects, which were alleged and proved in the Lamb case, it was alleged and proved *874that in the notice of sale the property was described, but the name of the owner was omitted entirely. It was further alleged that the description in said notice of sale was so indefinite as to void the sale.

At the outset appellees contend that the judgment in Pinkert v. Lamb, supra, is res judicata of the present suit. Appellants, on the other hand, contend that since they were not parties nor privy to the prior suit, the doctrine of res judicata is inapplicable and they are not bound by the former judgment. We agree that res judicata is not in the case, but the law as declared in the opinion in the Lamb case is controlling in the case at bar under the rule of stare decisis.

In the Lamb case we held that Act 207 of 1937 (Ark. Stats. 1947, §§ 20-441 et seq.) governed the procedure to be followed in the foreclosure suit brought by the District. Then it was urged and now appellants argue that Act 207 is violative of the due process clause of the U. S. Constitution, in making the foreclosure proceeding an action m rem against the lands, in providing for constructive service and in providing that an incorrect allegation of ownership should be immaterial. In sustaining the constitutionality of the statute we fully discussed these questions in the Lamb case. We adhere to the views there expressed.

Appellants further argue that we erred in holding Act 207 applicable since the foreclosure suit was already pending at the time said act became effective March 8, 1937. Appellants argue that the statute should be construed to be applicable only to suits commenced after its enactment. The statute pertained only to the mode of procedure and did not create any new rights or take away any vested rights. “Practice and procedure include the mode of proceeding and the formal steps by which a legal right is enforced. Those words comprehend writs, summonses, and other methods of notice to parties as well as pleadings, rules of evidence and costs. Practice and procedure indicate the forms for enforcing rights as distinguished from the law which creates, defines and *875protects rights.” Duggan v. Ogden, 278 Mass. 432, 180 N. E. 301, 82 A. L. R. 765. As stated by this court in Foster v. Graves, 168 Ark. 1033, 275 S. W. 653 (at p. 1039): “The rule established by this court is that statutes in regard to remedies in procedure may be construed to apply to- all pending proceedings, and will be so applied unless the language of the statute indicates a contrary intention. ’ ’ There is no such language in Act 207. We adhere to our decision in the Lamb case in holding Act 207 of 1937 applicable to this foreclosure proceeding.1

As discussed fully in the Lamb case, the misspelling of Stith as Smith in the complaint and warning order did not render void the foreclosure decree of the Chancery Court of November 23, 1937. Section 2 of Act 207 (Ark. Stats. 1947, § 20-441) which prescribed the procedure for enforcing collection of delinquent assessments by sale of the delinquent lands contains this provision: “Said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of the said lands ... be incorrectly alleged in said proceedings, and such judgment shall be enforced wholly against such property, and not against any other property or estate of said defendant.” Validity of a similar statutory provision was sustained by this court in Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252, affirmed by the Supreme Court of the United States in Ballard v. Hunter, 204 U. S. 241, 27 S. Ct. 261, 51 L. Ed. 461.

To hold that the obvious clerical error in misstating the name Stith rendered the decree void, would render the quoted statute meaningless. There is no contention made nor anything in the record in the instant case to indicate that there was such a person as James IT. Smith, or that Stith and his heirs were in any way misled by this mistake in the complaint and warning order.

We turn now to a consideration of appellants’ contention that failure to name the owner in the published *876notice of sale rendered the sale void. As already pointed out, the challenged proceeding was one in rem against the property. Section 4 of Act 207 (Ark. Stats. 1947, § 20-444) providing for publication of. notice of sale contained no requirement that the owner or supposed owner be named. Certainly, if an erroneous allegation of ownership is immaterial in the complaint and warning order omission of the owner’s name in the notice of sale would not be a fatal defect.

As to the notice of sale, appellants also argue that the following description used therein was indefinite and confusing: “The following described real estate to-wit: Lots 21, 22, Block 1, Lots 1 to 6, inclusive, 12, 13, 16, 17, Block 4, West 33 feet of East 66 feet of 1, 2, 3, 4, 5, 6, West one-half of 1, 2, 3, 4, 5, 6; 7 to 11 inclusive, Block 8, all in Adams Addition”.

It should be noted that the challenged description appeared in the notice of sale and not in the complaint, warning order, or decree of foreclosure. The description used in the earlier steps of the proceeding was as follows: “West % of Lots 1-6, inch. Block 8, Adams Addition”. Sufficiency of that description was upheld in the Lamb case. While a majority of the court is of the opinion that the description in the notice of sale was sufficient, appellants cannot prevail even assuming its insufficiency. Such a defect was cured by the decree of the Chancery Court confirming the sale.

This Court held in Stout v. Brown, 64 Ark. 96, 40 S. W. 701, that a sale of attached property under a writ of venditioni exponas, after it had been reported to and confirmed by the court, could not be collaterally attacked upon the ground that such writ did not specify the property to be sold, or that the officer sold without authority, or that he sold without giving the notice required by law. The Stout case was cited with approval in Lambie v. W. T. Rawleigh Co., 178 Ark. 1019, 14 S. W. 2d 245. In the later case of Cassady v. Norris, 118 Ark. 449, 177 S. W. 10, was also discussed in this language (at p. 1029): “The court further held that, after a confirmation of a sale has *877been made by order of tlxe court, all defects and irregularities in tbe conduct of tbe sale are cured, and every presumption will be indulged in favor of its fairness and regularity.” In Glasscock v. Glasscock, 98 Ark. 151, 135 S. W. 835, it was beld that confirmation of a judicial sale of lands cures sucb irregularities as a failure to advertise tbe lands. See, also, Files v. Harbison, 29 Ark. 307, upholding a judicial sale of lands against a collateral attack, where part of tbe lands bad been omitted from tbe notice of sale.

Appellants have also sought to bring themselves within tbe rule announced by this court in sucb cases as Word, Receiver, v. Grigsby, 206 Ark. 164, 174 S. W. 2d 439, and Schuman v. Person, 216 Ark. 732, 227 S. W. 2d 160. It is argued that James H. Stith sought to redeem tbe lots in question, but was prevented from doing so by the mistake or neglect of tbe official to whom be tried to pay tbe delinquent assessment. To establish this allegation in their complaint, appellants introduced in evidence two redemption certificates issued to tbe Homeowners Loan Corporation, which beld a mortgage on tbe property. One certificate was issued in 1934 covering-delinquencies for several previous years; tbe other was issued in 1938 for tbe delinquent 1937 assessment. No other proof was offered on this issue. Mere proof of two redemptions on other occasions certainly did not prove that as to tbe 1934 delinquency, James Stith attempted in good faith to pay bis taxes and was only prevented from doing so by official misprision.

Even though tbe foreclosure sale was valid, James H. Stith and bis heirs bad five years from tbe date of tbe sale on March 16, 1938, in which to redeem tbe property. Ark. Stats., 1947, §§ 20-446, 20-1144. The record does not disclose that they made any effort to do so.

We will not discuss at length appellants’ allegations that Pinkert’s title was acquired through fraud and collusion. Suffice it to say there is no proof whatever to sustain such allegations.

*878All other arguments of appellants have been com sidered and are deemed to be without merit.

The decree is affirmed.

1

As pointed out in the Lamb case, Act 207 of 1937 was subsequently amended by Act 130 of 1939 and Act 19B of 1949, which are inapplicable to the case at bar.