{
  "id": 8720923,
  "name": "Howell v. McMillan",
  "name_abbreviation": "Howell v. McMillan",
  "decision_date": "1950-06-05",
  "docket_number": "4-9221",
  "first_page": "430",
  "last_page": "434",
  "citations": [
    {
      "type": "official",
      "cite": "217 Ark. 430"
    },
    {
      "type": "parallel",
      "cite": "230 S.W.2d 654"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "97 S. W. 662",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "80 Ark. 411",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1491126
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      "opinion_index": 0,
      "case_paths": [
        "/ark/80/0411-01"
      ]
    },
    {
      "cite": "211 Ark. 681",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1473249
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      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
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    },
    {
      "cite": "126 S. W. 1059",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "94 Ark. 338",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1545344
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      "opinion_index": 0,
      "case_paths": [
        "/ark/94/0338-01"
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  "analysis": {
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    "char_count": 8071,
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  "last_updated": "2023-07-14T21:48:24.265381+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Howell v. McMillan."
    ],
    "opinions": [
      {
        "text": "Ed. F. McFaddin, Justice.\nThe litigants are rival claimants to a tract of land in White County which became delinquent for the 1944 State and County taxes, and was purchased by appellant, Howell, at the Collector\u2019s sale on November 12, 1945. After the expiration of the two-year .period allowed for redemption appellant received a deed from the County Clerk on November 19, 1947.\nOn December 17, 1947, appellant filed suit in the White Chancery Court, praying that his title be quieted and confirmed and alleging possession under his tax deed, and also that \u201cPlaintiff has paid the State and County taxes due on said lands for the three years next before publication of notice of the filing of this complaint.\u201d This suit to quiet title was Case No. 2959 in the White Chancery Court; and we refer to it as \u201cthe confirmation suit.\u201d The appellees \u2014 L. 0. McMillan and 0. W. Killan, both residents of Texas \u2014 were named as the only defendants in the confirmation suit; and service of process on them was attempted by publication of a warning order and report of attorney ad litem. Proof of such publication of the warning order became a part of the file in the case, and a decree of confirmation was rendered on February 9, 1948, based on the said publication of warning order and report of attorney ad litem as the only service of process in the case.\nOn March 23, 1949, the present appellees \u2014 McMillan and Killan \u2014 filed Case No. 3264 in the White Chancery Court, naming the present appellant, Howell, as the defendant, and attacking the confirmation decree in Case No. 2959. The complaint alleged, inter alia:\n(a) That appellees were the owners of the land;\n(b) That the 1944 tax sale was void for several itemized reasons;\n\u201e (c) That appellees tendered appellant a return of all amounts, etc., paid by him; and\n(d) That the confirmation decree in Case No. 2959 was void because, inter alia, the warning order published in the said confirmation suit was insufficient publication to give the Court jurisdiction to render the confirmation decree in Case No. 2959.\nIn his pleadings against the said complaint, appellant admitted that the 1944 tax sale was voidable for-several reasons; but claimed (a) that the confirmation decree was valid and rendered beyond attack all the defects in the tax sale, and (b) that the appellees had delayed too long to attack the confirmation decree. The Chancery Court consolidated Case No. 2959 and .Case No. 3264, and upon a trial, reflecting the facts as above recited, found for appellees, set aside the confirmation decree, and quieted appellees\u2019 title subject to payment to appellant of all amounts paid out by him for taxes on the lands involved. From that decree is this appeal.\nLearned counsel for appellant says that the confirmation proceedings were under the authority of \u00a7 34-1918, et seq., Ark. Stats. (1947), and claims that all jurisdictional requirements were strictly followed by appellant in the confirmation suit. We conclude, however, (a) that at least one essential jurisdictional requirement \u25a0 \u2014 i. e., legal publication of notice \u2014 was lacking in the confirmation suit; (b) that such defect appears in the confirmation proceedings; and (c) that the confirmation decree was void as rendered without proper publication.\nAs previously stated, appellant admits that the confirmation suit (i. e., Case No. 2959) was brought under \u00a7 .34-1918, Ark. Stats. (1947). We agree with that statement; but we find that \u00a7 34-1919, Ark. Stats. (1947), prescribes the form, contents, and time required for valid publication of notice in proceedings under \u00a7 34-1918, which is six weeks\u2019 publication of a notice that \u201cshall state the authority under which the sale took place and give a description of the land purchased and the nature of the title by which it is held. \u2019 \u2019 The publication on which appellant based the confirmation decree was a four toeeks\u2019 publication of a warning order which recited:\n\u201cThe defendants, L. 0. McMillan and 0. W. Killan, are hereby warned to appear in this court within thirty days and answer the complaint of the plaintiff.\u201d\nIt is clear that the publication of the said warning order for four weeks was not the type of publication required by \u00a7 34-1919. The decree in the confirmation suit recites that it was based on the publication of the warning order, and the warning order and proof of publication were made a part of the papers in the confirmation proceedings; so, under the authority of Winn v. Campbell, 94 Ark. 338, 126 S. W. 1059, we conclude that the confirmation decree itself shows the insufficiency of publication required to give the Court jurisdiction to render the confirmation decree under \u00a7 34-1918. When a litigant pursues a special statutory proceeding (as the confirmation proceeding pursued by appellant in the case at bar), then the method of service provided in such special statutory proceeding is exclusive. In Abbott v. Butler, 211 Ark. 681, 201 S. W. 2d 1001, in discussing confirmation proceedings we cited Lawyer v. Carpenter, 80 Ark. 411, 97 S. W. 662, and said:\n\u201cIt was held in the case just cited that a general law does not apply where there is a specific statute covering a particular subject matter, irrespective of the date of their passage, and the effect of the confirmation decree must be construed with reference to the act under which it was rendered. \u2019 \u2019\nWe therefore conclude that there was no legally sufficient publication of the notice as required by \u00a7 34-1919 so as to give the Court jurisdiction to render the confirmation decree in Case No. 2959; that the Chancery Court was correct in consolidating that case with Case No. 3264, and in allowing appellees to make defense to the confirmation proceeding; and that the defense, as made, supports the decree rendered and from which there is this appeal. Other questions presented by the appellant are found to be without merit.\nAffirmed.\nSee \u00a7 84-1201 Ark. Stats. (1947).\nThe form of warning order in this case was that as contained in Form No. 5 of the Appendix to Ark. Stats. 1947, Annotated Vol. 3, p. 1100.\nIn order to be able to definitely state that \u00a7 34-1919 governs the _notice required in proceedings brought under \u00a7 34-1918, we have made a step by step survey of the legislation leading to these Sections, as contained in the various compilations of our Statutes, as follows:\n(a) \u2014 Sections 1 and 2 of Chapter 149 of the Revised Statutes of 1838 were carried verbatim into \u00a7\u00a7 1 and 2 of Chapter 160 of English\u2019s Digest of 1848, except the words \u201cat the City of Little Rock\u201d were changed to read \u201cin this State,\u201d since the Digester in 1848 understood that \u00a7 6 of Chapter 6 of the Revised Statutes of 1838 authorized such a change.\n(b) \u2014 Sections 1 and 2 of Chapter 160 of English\u2019s Digest of 1848 were carried verbatim into \u00a7\u00a7 1 and 2 of Chapter 170 of Gould\u2019s Digest of 1858 and then into \u00a7\u00a7 786 and 787 of Gantt\u2019s Digest of 1874.\n(c) \u2014 Section 786 of Gantt\u2019s Digest was amended by Act 69 of 1881 to substitute the words \u201cthe County Clerks or by the State Land Commissioner\u201d in lieu of the words \u201cthe Auditor\u201d; and as so amended became \u00a7 576 of Mansfield\u2019s Digest of 1884. Section 787 of Gantt\u2019s Digest was carried verbatim into \u00a7 577 of Mansfield\u2019s Digest of 1884.\n(d) \u2014 Section 576 of Mansfield\u2019s Digest has remained unchanged and has been carried verbatim into \u00a7 661 of Kirby\u2019s Digest of 1904, and \u00a7 8379 of Crawford & Moses\u2019 Digest of 1921 and \u00a7 10975 of Pope\u2019s Digest of 1937; and is now \u00a7 34-1918, Ark. Stats. 1947.\n(e) \u2014 Section 577 of Mansfield\u2019s Digest was amended by \u00a7 1 of Act 95 of 1893 and, as so amended, became \u00a7\u00a7 662 to 664, inclusive, of Kirby\u2019s Digest of 1904. These \u00a7\u00a7 662 to 664 of Kirby\u2019s Digest were carried verbatim into \u00a7\u00a7 8380 to 8382, inclusive, of Crawford & Moses\u2019 Digest of 1921 and into \u00a7\u00a7 10976 to 10978, inclusive, of Pope\u2019s Digest of 1937, and now constitute \u00a7 34-1919, Ark. Stats. 1947.",
        "type": "majority",
        "author": "Ed. F. McFaddin, Justice."
      }
    ],
    "attorneys": [
      "Gulbert L. Pearce, for appellant.",
      "Gordon Armitage, for appellee."
    ],
    "corrections": "",
    "head_matter": "Howell v. McMillan.\n4-9221\n230 S. W. 2d 654\nOpinion delivered June 5, 1950.\nRehearing denied July 3, 1950.\nGulbert L. Pearce, for appellant.\nGordon Armitage, for appellee."
  },
  "file_name": "0430-01",
  "first_page_order": 454,
  "last_page_order": 458
}