{ "id": 1650382, "name": "Meserve v. Edmonds", "name_abbreviation": "Meserve v. Edmonds", "decision_date": "1954-03-15", "docket_number": "5-361", "first_page": "297", "last_page": "304", "citations": [ { "type": "official", "cite": "223 Ark. 297" }, { "type": "parallel", "cite": "265 S.W.2d 704" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "174 A. L. R. 945", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "42 S. E. 2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "186 Va. 325", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2146332 ], "opinion_index": 0, "case_paths": [ "/va/186/0325-01" ] }, { "cite": "208 Ark. 307", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1478609 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/208/0307-01" ] }, { "cite": "206 Ark. 1086", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485108 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/1086-01" ] }, { "cite": "88 L. Ed. 858", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "303 U. S. 303", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6140221 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/303/0303-01" ] }, { "cite": "218 Ark. 218", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1612044 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/218/0218-01" ] }, { "cite": "12 S. W. 2d 404", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "178 Ark. 768", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1397071 ], "opinion_index": 0, "case_paths": [ "/ark/178/0768-01" ] } ], "analysis": { "cardinality": 631, "char_count": 12527, "ocr_confidence": 0.552, "pagerank": { "raw": 5.89859015992868e-08, "percentile": 0.36905530013525883 }, "sha256": "9c8991a162bcf3abf9c979842b7dc9829c3f46e520a8c31cddf4896f5d6726dd", "simhash": "1:6ff0590ce38e890a", "word_count": 2178 }, "last_updated": "2023-07-14T21:02:33.600099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice McFaddin concurs." ], "parties": [ "Meserve v. Edmonds." ], "opinions": [ { "text": "J. Seaborn Holt, J.\nThe three suits here involved were consolidated for trial.\nFencing District No. 6 of Woodruff County was created in 1925 under Act 158 of the 1891 General Assembly, \u2014 Ark. Stats. 1947, 78-1301- \u2014 78-1329, inclusive, Section 78-1336, and Sections 78-1347 \u2014 78-1353, inclusive. Subsequent to its formation, additional territory was annexed until practically all of Woodruff County was embraced within the District, the last two additions being made in 1945.\nBy proper County Court Order, on May 6, 1946, all lands (except lands of the Hunter Annexation and certain railroad lands) within the District, including the lands here involved, were assessed at the rate of one per cent per annum, on assessed valuation, to be paid before October 1, 1946. No other assessment was ever made.\nAppellants, Meserve, et al., Della Holcombe, W. W. Shaver, Jr., J. L. Shaver, and R. E. Robinson, failed to pay their assessments and suit was filed in 1948 (as Case No. 6130) to foreclose the District\u2019s lien on the lands here involved.\nDecree was entered May 10,1948, the lands sold, and sales were duly confirmed July 15, 1948, and one year allowed in which to redeem. There was no appeal from this decree.\nThe lands owned by Meserve, et al. were assessed and sold to Edmonds (appellee) for $27.99, under the following description:\n\u201cName of Owner Description Sec. Twp. Range. Tax\nA. G. Mesero Wy2 24 8N 1W $6.40\nR. J. Mesero W% 25 8N 1W 6.40\nA. G. Mesero Ey2 26 8N 1W 6.40\u201d\nThe Holcombe lands were assessed and sold as follows :\nName of Owner Description Sec. Twp. Range Tax\nE. P. Hunsinker NW\u00cd4 SE14 21 8 1 $1.00\nE. P. Hunsinker S V2 SE% 21 8 1 2.00\nE. P. Hunsinker NW14 SW % 22 8 1 1.00\nE. P. Hunsinker SW Vi NW% 22 8 1 1.00\n\u201cOrbin Ball purchased the South Half (S%) Southeast Quarter (SE1^) of 21 and the Southwest Quarter (SW14) Northwest Quarter (NW1^) of 22 for the sum of $6.90; Fencing District No. 6 purchased the Southwest Quarter (SW1^) of Northwest Quarter (NW%) Sec. 22 for $2.85; and Jack Childress purchased the Northwest Quarter (NW1^) Southeast Quarter (SE14) Sec. 21 and the Northwest Quarter (NW]4) Southwest Quarter (SW1^-) Sec. 22 for a total of $55.70.\u201d\nThe Shaver-Bobinson lands were assessed and sold to Orbin Ball for $8.10, under the following description:\n\u201cName of Owner Description Sec. Twp. Range Tax\nHenry Wrape Co. EM\u00a1 NE Vi 23 8 1 $2.00\nHenry Wrape Co. E% SE!4 23 8 1 2.00\u201d\nAs indicated, these sales were confirmed.\nThe three present consolidated suits were filed on the following dates: Meserve, et al., April 12, 1950; Holcombe, June 4, 1950; and the Shaver-Bobinson, October 21, 1950. In each of these suits, appellants (plaintiffs in the trial court) alleged, in effect, that all proceedings in Case No. 6130, Woodruff Chancery Court, to foreclose the 1946 delinquent fencing tax are void because defendants in that cause were not served with notice as provided by law.\nAll defendants (appellees), except the Commissioners of the Fencing District, answered with a general denial and plead res adjudicata.\nTrial resulted in a decree, which contained these recitals: \u201cThe court found that plaintiffs in the Meserve and Holcombe cases were entitled to redeem their property, their suits having been filed within two (2) years, from July 9, 1948, the date of sale of their property; the defendants, Orbin Ball and Arnie Ball should prevail in the Shaver case because suit was not filed to redeem within two years from the date of sale.\n\u201cThe court further found that all contentions raised by the plaintiffs in all three (3) cases, attacking the decree in Cause No. 6130, rendered by the Woodruff Chancery Court on May 10, 1948, and all proceedings had thereon, and all contentions attacking the tax levy made by the Comity Court of Woodruff County, levying the tax upon the lands involved in this case by Fencing-District No. 6, should be dismissed.\u201d\nThe cause is here on direct appeal of Meserve, et al., Holcombe, and Shaver, et al., and the cross-appeal of Edmonds and Ball.\nWe have concluded, after a review of the record presented, that proper notice to appellants, delinquent property owners, in the foreclosure sale in Case No. 6130 in 1948, had not been given, as appellants contend, under the Fencing Act, supra, and that the sale was, therefore, void and subject to direct attack.\nIn Morgan v. Leon, 178 Ark. 768, 12 S. W. 2d 404, (Headnote 1), the court held: \u201cJudgment \u2014 Direct Attack. \u2014 A proceeding- to have a decree declared void upon the ground that it was entered without notice, is a direct and not a collateral attack on the decree.\u201d\nIt is undisputed, in this case, that the only notice attempted to be given the delinquent land owners (appellants) in the foreclosure suit (No. 6130) of 1948 was by publication in a local newspaper, \u2014 in other words, constructive service, and no personal service was attempted, or had..\nThe Fencing Act No. 158 of 1891, above, in Section 20, provides: \u201cIn such suits the same service shall be had on defendants, and the case shall proceed in the same manner as is now provided by law in cases of suits for the collection of assessments for local improvements in cities of the first class, so far as the same proceeding-can be made applicable, and in case of sale the owner shall have the same right of redemption by paying the amount of the purchase money and all assessments to the purchaser and twenty percentum thereon, within one year from the date of sale.\u201d\nIt will be observed that this section plainly and unmistakably directs that \u201cservice shall be had on defendants (delinquent landowners), and the case shall proceed in the same manner as is now provided by law,\u201d etc.\nThe law, on the effective date of this Act 158, was embodied in Act 84 of the General Assembly of 1881, which was \u201cAN ACT to Regulate the Manner of Assessing Real Property for Local Improvements in Cities of the First Class,\u201d and provided in Section 10 specifically the manner in which delinquent property should be foreclosed and the kind of service necessary on delinquent property owners. Section 10 of Act 84 provides: \u201c* * # The owner of the property assessed shall be made a defendant if known, if he is not known, that fact shall be stated in the complaint, and the suit shall proceed as a proceeding in rem against the property assessed. Summons shall be issued, and the defendant shall be required to appear and respond within five days after service; and upon default a decree shall be rendered against such property for the amount of such assessment, penalty and cost, and an attorney\u2019s fee. If the sheriff, or other officer, to whom the writ may be directed, shall return that defendant is not to be found in his county, or if the owner is stated in the complaint to be unknown, service shall be made by affixing a copy of the summons to the property assessed, or to some part thereof, for fifteen days, and by publishing a- copy of the summons in some daily or weekly paper, published in the city, for one insertion, and the cause shall be made ready for hearing within fifteen days after such publication, and a decree shall be rendered as in case of actual service. \u2019 \u2019\nIt appears that Section 20 of Act 158, above, has never been amended, and, as indicated, this section required that delinquent property, as here, would have to be foreclosed, as provided by law, at the time of the effective date of that Act. In other words, we hold that the plain terms of Act 84, \u00a7 10 (1881), above, required that the foreclosing authorities exercise good faith in endeavoring to ascertain the name of the owner of any property offered for sale, and, when so ascertained, that personal service be had. Laflin v. Drake, 218 Ark. 218, 237 S. W. 2d 32. Section 20 of the Fencing Act, we hold, was not amended when the General Assembly, in 1937 and 1939, amended \u00a7 10 of Act 84 of 1881 to provide for constructive service in Municipal Improvement Districts instead of personal service. We think the Legislature, in Act 158, \u00a7 20, in dealing with Fencing Districts, clearly intended that before a delinquent property owner could have his property taken away from him for failure to pay an assessment, direct and literal compliance with \u00a7 20 of Act 158, and \u00a7 10 of Act 84, containing the requisites of notice, must be followed, and that personal service was intended and required under \u00a7 10, and none was had in the present three cases.\nIn the 1948 foreclosure suit (No. 6130), it was not alleged in the complaint that the owners of the property, here involved, were unknown, but the proceedings were against named defendants, alleged to be the supposed owners of the property. This was not notice to the true and record owners of the lands, who had paid the taxes on the lands for many years. No effort appears to have been made to determine the true owners of the lands, as \u00a7 10, above, requires. This section also requires that the owners of the delinquent lands shall be made defendants, if known, summons issued against such owners, and that they appear and answer within five days after service. In case the owners are not known, then that fact shall be stated in the complaint, which, as indicated, was not done in the foreclosure suit.\n\u201cIf doubt exists as to the construction of a taxing statute, the doubt should be resolved in favor of the taxpayer.\u201d Hassett v. Welch, 303 U. S. 303, 58 S. Ct. 559, 88 L. Ed. 858.\n\u201cIf it be thought that, at most, the legislative purpose as expressed by the words employed is ambiguous, still the holding must be adverse to appellant because doubt in such cases is invariably resolved in favor of the taxpayer.\u201d McLeod, Commissioner of Revenues v. The Commercial National Bank of Little Rock, 206 Ark. 1086, 178 S. W. 2d 496.\nBut, say appellees (Holcombe and Ball), in any event, the 1948 foreclosure (No. 6130) is res adjud-cata and a complete defense to the present suits. They contend that Suit No. 6130 was a class suit and the doctrine of \u201cvirtual representation\u201d applies and appellants are bound by that decree. We do not agree.\nIn the 1948 foreclosure suit, it appears that an attorney filed an answer for his clients, the following land owners, \u201cL. A. Stuckey, John Ancil, Joe Hess, Joe A noil, Ben Starman, W. A. Smith and Walter McDonald,\u201d and alleged that said answer was for these seven parties, or landowners, \u201cand for the benefit of all other owners of lands in said territory.\u201d Appellants, \u2014 as we have concluded, \u2014 had no notice of the foreclosure suit and had not authorized appellees \u2019 attorney to represent them in any capacity. It appears that one of the appellants is a prominent practicing attorney. Such attempted representation was not \u201cbona fide for the entire class and with all diligence\u201d and in their interest, such as would bind the entire class. Holthoff v. State Bank & Trust Company of Wellston, Mo., et al., 208 Ark. 307, 186 S. W. 2d 162.\nAs we have pointed out, it was necessary under the Arkansas Fencing Law, above, that the owners he made parties to the foreclosure suit. Where the owner is unknown, then the suit can proceed in rem. The statute was not complied with. The foreclosure proceedings in No. 6130 were void and appellants\u2019 lands could not be foreclosed in that case under the notice given.- Certainly, then appellants\u2019 lands could not be foreclosed in such a void proceeding (and appellants bound by such proceeding) just because appellees\u2019 attorney attempted to appear for them and stated that he answered fb-r all other landowners in the District. To permit this to be done, in the circumstances, would deny appellants their constitutional rights.\n\u201c5. The constitutional requirement of due process gives each party a right to be heard. (See Am. jur. \u2018 Constitutional Law,\u2019 \u00a7 607). * * *\n\u201c6. In order that a valid judgment may be rendered in a proceeding in rem or quasi in rem, every person who has an interest in the res must have legal notice of the proceeding and an opportunity to be heard. (See Am. Jur. \u2018Judgments,\u2019 \u00a7 446).\u201d O\u2019Hara, et al., v. Pitts-ton Company, Appt., 186 Va. 325, 42 S. E. 2d 269, 174 A. L. R. 945.\nAccordingly, the decree is reversed and the cause remanded on direct appeal with directions to declare void, and cancel, the proceedings in the foreclosure suit of 1948, No. 6130, and for further proceedings consistent with this option.\nAffirmed on cross-appeal.\nJustice McFaddin concurs.", "type": "majority", "author": "J. Seaborn Holt, J." } ], "attorneys": [ "Shaver & Shaver, for appellant.", "Lloyd Henry and W. J. Dung an, for appellee." ], "corrections": "", "head_matter": "Meserve v. Edmonds.\n5-361\n265 S. W. 2d 704\nOpinion delivered March 15, 1954.\nShaver & Shaver, for appellant.\nLloyd Henry and W. J. Dung an, for appellee." }, "file_name": "0297-01", "first_page_order": 319, "last_page_order": 326 }