author: John A. Fogleman, Justice.

text:
    Beulah W. Taylor DOSS et al v. H. E. TAYLOR Jr.
    5-4492
    424 S. W. 2d 541
    Opinion delivered March 4, 1968

      Paul K. Roberts, for appellants.

      Huey & Vittitow, for appellee.
   John A. Fogleman, Justice.

This appeal requires that we determine whether the Chancery Court or Probate Court of Bradley County has jurisdiction of the sale of certain lands of decedent, H. E. Taylor, Sr., who died intestate, a resident of that county, on June 16, 1964. Taylor left as survivors: his widow, Beulah W. Taylor Doss; the appellee, a son by a previous marriage; and a minor daughter, of whom the widow is guardian. The widow was also appointed administra-trix. She filed her inventory, listing the real estate involved, on August 28, 1964. On December 3, 1965, the probate court made statutory allowances to the widow and minor child. It also made an ‘ Order of Partial Distribution.” That order recited that there were no unpaid claims pending against the estate and that the real property was already vested in the heirs subject to the widow’s dower of one-third for life. The order closed with this sentence:

“The possession of said property is not susceptible of partition in kind and the personal representative, or any interested person should file a proper petition in this court to seek the sale of said property for the purpose of distribution.”

Nothing in the record indicates that appellant has ever filed a final account as administratrix.

On March 22, 1967, appellee filed a petition for partition in the chancery court, alleging that the real estate was not susceptible to division in kind. He prayed that the property be partitioned or sold and the proceeds of sale divided among the parties according to their respective interests after the payment of attorney’s fee and costs. Appellant demurred to this petition individually, as administratrix and as guardian. The grounds of demurrer included contentions that there was another action pending between the same parties for the same cause and that the chancery court had no jurisdiction of the subject matter.

On June 2, 1967, appellant, as administratrix, filed a petition in probate court for the sale of this real property. Appellee demurred to this petition on the ground that the petition for partition was pending in the chancery court. On June 12, 1967, appellee amended hjs petition for partition, seeking an accounting for the rents collected by appellant as administratrix. On the same day, the chancery court passed appellant’s demurrer “to be heard after the consolidation iof the petition to sell land filed by the Administratrix ** * .” No motion to transfer this petition or to consolidate the petitions had been filed by either party, but the probate court, on the same day, over the objections of the appellant, transferred and removed appellant’s petition for sale and the demurrer thereto to the chancery court and consolidated it with the partition proceeding. The next day appellant filed a motion to dismiss the suit on the ground that the court did not have subject matter jurisdiction of the property of which partition was sought. On June 14th, the probate court entered its order finding that the ad-ministratrix possessed the property and had collected rents, paid taxes, and kept the property insured under the authority of the order of partial distribution. The chancery court, on the same day, consolidated the probate proceedings with the chancery proceedings for final adjudication, overruled appellant’s demurrer and motion to dismiss, both being considered as a demurrer to the record as it then stood. Appellant elected to stand on her demurrers, so the chancery court entered a decree ordering sale of the lands for partition but directing that further proceedings be withheld pending disposition of this appeal. The partition decree contained findings that the administration had not been closed^ that the personal representative had been, and then was, in possession of the real estate for tne purpose of collecting rentals and preserving the property, and that the property was not susceptible to division in kind without great prejudice to the owners. The decree provided for sale upon three months’ credit. It b^arred the diower of appellant. Fixing of attorney’s fees, assessment of costs and expenses of sale, distribution of proceeds and accounting for rents were all continued pending the sale.

It is clear beyond doubt that tbe probate court bad exclusive jurisdiction lof tbe accounting by appellant as administratrix. In Phillips v. Phillips, 143 Ark. 240, 220 S. W. 52, an action in chancery to construe a will, it was held that tbe chancery court should have refused to entertain any jurisdiction to state accounts between an executor and certain legatees and devisees while tbe administration of tbe estate was still pending, there having been no final settlement of tbe accounts of tbe executor and no allegations or proof of fraud in the settlement of bis accounts. It was clearly said that these matters were exclusively within tbe jurisdiction of the probate court. Under the direct bolding in tbe cited case, tbe Probate Court of Bradley ¡County had original and exclusive jurisdiction of tbe affairs of tbe Taylor estate relating to th© accounts and settlements of tbe admin-istratrix, and tbe chancery court erred in taking jurisdiction of tbe accounting.

In considering tbe jurisdiction of the chancery court for the purpose of partition, we must determine just what jurisdiction each of the courts could exercise over this, property. There can be no doubt that when lands are released to the heirs early in a probate proceeding and there is no reason for the exercise of probate jurisdiction over them, the pendency of the probate proceedings does not preclude the maintenance of a partition suit in chancery. Boyd v. Bradley, 239 Ark. 120, 388 S. W. 2d 107. While the court there only mentions specifically that there was no claim that the lands were needed for payment of debts in treating of the exercise of probate jurisdiction, there was no indication that the lands in that case were needed for any probate purpose. One of the authorities cited there was Ark. Stat. Ann. § 62-2401 (Supp. 1963). It had previously been said in Cranna v. Long, 225 Ark. 153, 279 S. W. 2d 828, another of the authorities cited in the Boyd case, that real property was an asset in the hands of a personal representative only when needed to pay debts or expenses of administration under § 94, Act 140 of 1949, then Ark. Stat. Ann. § 62-2401. It was recognized in the Cranna case that, if Ark. Stat. Ann. § 62-2714 (for the sale, mortgage or lease of real estate) had been invoked, the status of the real property as an asset of the estate might have been changed. Since that decision, however, § 62-2401 has been amended by Act 424 of 1961 to provide that real property of decedent shall be an asset in the hands of the personal representative when the court finds that it should be sold for any purpose enumerated in § 127 of Act 140 (§ 62-2704). Thus, since the passage of the 1961 Act, title to the real estate of an intestate vests in his heirs at law upon his death, subject to the widow’s dower and sale for the payment of debts, the preservation or protection of the assets of the estate, the distribution of the estate, or any other purpose in the best interest of the estate. Ark. Stat. Ann. §§ 62-2401, 62-2704 (Supp. 1967).

Under § 62-2714, the probate court is authorized to order sale of real estate upon petition of an administrator. In determining what property shall be sold for distribution of an estate or for any other purpose in the best interest of the estate of an intestate, there is no priority as between real and personal property, and it is no longer necessary that one class of property be exhausted before resort is had to the other for these purposes. Ark. Stat. Ann. § 62-2701 (Supp. 1967). When real property has become an asset in the hands of an administrator, or when the court finds it necessary for the preservation of the property, for protection of the rights and interests of persons having interests therein or for the benefit of the estate, the personal representative may collect rents, pay taxes, make repairs, maintain and preserve the property, protect it by insurance, and maintain or defend an action for possession or to determine or protect the title, until the property is sold or delivered to the distributees or until the estate is settled. Ark. Stat. Ann. § 62-2401 (Supp. 1967).

The provisions of the probate court’s order of partial distribution clearly constitute a finding that the real estate should be sold for distribution. This finding is supported by the probate court’s order of June 14, 1962, declaring that the appellant, as administratrix, was and had been in possession of the property under the authority of that order. Consequently, the real property in question has been an asset in the hands of appellant, as administratrix, at least since the date of the order of partial distribution. Clearly, the probate court had, by these steps, assumed jurisdiction over these lands and the sale thereof.

In case of concurrent jurisdiction in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other. State v. Devers, 34 Ark. 188; Town of Salem v. Colley, 70 Ark. 71, 66 S. W. 195; Taylor v. Nelson, 184 Ark. 1005, 44 S. W. 2d 357; Jones v. Garratt, 199 Ark. 737, 135 S. W. 2d 859; Schirmer v. Cockrill, 223 Ark. 817, 269 S. W. 2d 300. In applying this principle to the present case, it seems clear that the two courts would have concurrent jurisdiction to sell the real estate: the chancery court for partition; the probate court for distribution or any other purpose in the best interest of the estate.

A close parallel is found in cases involving assignment of dower. Probate jurisdiction is given by Ark. Stat. Ann. § 62-704 et seq. Yet these statutes do not deprive the chancery court of its inherent jurisdiction. Johnson v. Johnson, 84 Ark. 307, 105 S. W. 869. The jurisdiction of the probate and chancery courts to assign dower in both real estate and personalty is concurrent. Shields v. Shields, 183 Ark. 44, 34 S. W. 2d 1068; Brennan v. McCarthy, 213 Ark. 286, 210 S. W. 2d 791. In the Shields case, an administrator had made and reported a partial assignment of a dower in personalty and undertook to state the balance due the widow thereon in his final settlement. It was held that the approval of the report was an assumption of jurisdiction by the probate court and the action of the chancery court in attempting to assign dower in the personal property on the petition of the widow was held to be an erroneous interference with the exercise of the concurrent probate jurisdiction. The chancery decree was reversed and the cause remanded with directions to dismiss the complaint and remit the parties to their remedies in probate.

It has also been held that proceedings for the assignment of dower in a probate court were not abated by the filing of a suit in equity by an heir seeking partition sale of lands of the decedent, on authority of the Shields case. Marsh v. Marsh, 230 Ark. 59, 320 S. W. 2d 754.

The exercise of jurisdiction of the chancery court is not prevented by reason of the widow’s unassigned dower under our present partition statute which authorizes partition of lands held as assigned or unassigned dower. Ark. Stat. Ann. § 34-1801 (Supp. 1967); Smith v. Smith, 235 Ark. 932, 362 S. W. 2d 719. Although the suit in the cited case was brought by the -widow, no reason is seen why. the same right is not given an heir by the inclusion of any persons having any interest in such lands among those who can petition for partition. In Goodlett v. Goodlett, 209 Ark. 297, 190 S. W. 2d 14, it was held that where a divorced wife was awarded an undivided one-third interest for life in certain real estate, with the remainder in the husband, there was such a tenancy in common as would authorize a partition suit by the husband. On the other hand, the widow claiming dower in real estate is a distributee in probate. Ark. Stat. Ann. § 62-2003 (Supp. 1967).

There are some differences in procedures in the proceedings in the two courts. For instance, the probate sale can only be after an appraisement is made. Ark. Stat. Ann. § 62-2716 (Supp. 1967). No appraisal is required in a partition' sale. Tbe probate sale may be at public or private sale. A public sale may not be for less than three-fourths of the appraised value and a private one for not less than the appraised value. The court may specify other reservations, restrictions, terms, and conditions. No probate sale may be held more than six months after the order therefor -without a new appraisal within thirty days preceding the sale. Ark. Stat. Ann. § 62-2717. None of these safeguards surround a partition sale. A probate sale may be upon credit for not to exceed 75% of the purchase price for not more than one year. Ark Stat. Ann. § 62-2707. The court making the order of sale for partition determines the terms and conditions of sale and the credit to be given. It seems that both are basically for sale of the real estate and distribution of the proceeds, however, so that the jurisdiction is concurrent.

The probate court assumed jurisdiction first, so the chancery court has erroneously undertaken to exercise jurisdiction. The decree of the chancery court is reversed and the cause is remanded with directions to dismiss the petition for partition and remit the parties to their remedies in the probate court.

       The same statements are quoted and followed in Calmese v. Weinstein, 234 Ark. 237, 351 S. W. 2d 437, decided November 27, 1961, but the decree appealed from was rendered before the passage of the Act to which reference is later made.


source: Caselaw Access Project

author: J. Fred Jones, Justice. Conley Byrd, Justice, John A. Fogleman, Justice.

license: Public Domain

text:
    Alvin J. INGRAM v. Troy LUTHER et al
    5-4331
    424 S. W. 2d 546
    Opinion delivered March 4, 1968

      Howard Mayes and Wils Davis, for appellant.

      Rhine & Rhine, for appellees.
   J. Fred Jones, Justice.

This appeal is from a decree of the Greene County Chancery Court setting aside a previous decree and confirming and quieting title to all that portion of Lots 4, 7 and 8 east of the St. Francis Levee in Section 32, Township 18 North, Range 8 East in Greene County, Arkansas. For convenience these lots will hereafter be referred to by number except where a fuller description is necessary.

The first decree in chancery case No. 8366 was entered on December 20, 1961, and confirmed title in the appellant who was the plaintiff in that case. The second decree in chancery case No. 8881 was entered on November 7,1966. This second decree set aside the first decree and confirmed title,in the appellees who were defendants in the first case and plaintiffs in the second case. The entire record of the trial in the first case was made a part of the record in the trial of the second case. On this appeal from the second decree, the appellant relies on the following points for reversal:

“1. The .lower court should not have set aside, cancelled and held for naught the decree of the Greene County Chancery Court in Cause No. 8366 because the proof in this case is contrary to the Court’s finding that no service of any kind was had on Troy Luther and Lula Mae Luther, his wife.
“2. The lower court should not have decreed that title to all that part of Lots 4, 7 and 8 lying Bast of the St. Francis Levee and Drainage ditch in Section 32, Township 18 North, Range 8 Bast, be quieted in Troy Luther and Lula Mae Luther, his wife, as against Alvin J. Ingram because such finding was contrary to law.
“3. Payment of taxes on land under color of title is deemed to be possession.
“4. Payment of taxes on unimproved land for a period of fifteen consecutive years creates presumption of color of title.
“5. Redemption of land from tax sale is not payment of taxes within the meaning of the law.”

The pertinent facts in the record before ns are as follows: In 1940, a Mr. Barnes who owned all of Lots 4, 5, 6, 7 and 8, sold Lots 5 and 6 and all that part of Lots 4, 7 and 8 west of the St. Francis Levee to a Mr. Donaldson.-In 1941, Barnes sold that portion of Lots 4, 7 and 8 east of the levee to a Mr. Austin, and in 1954, appellees purchased Lots 4, 7 and 8 east of the levee from the Austin heirs.

Donaldson sold Lots 4, 7 and 8 west of the levee to Hudson, who in turn sold to Kent who quitclaimed to W. T. Kitchen in 1951 under description as follows: “Lots 8, 4, 5, 6 and 7 in accordance with recent survey and plat replatting lands south and east of re-established meander line and north and west of original levee, of Section 32, Township 18 North, Range 8 East.” In 1952, W. T. Kitchen transferred by quitclaim deed this property by this same description to Kitchen Farms Company. In 1958, Kitchen Farms Company transferred to Mrs. Effie C. Kitchen under description as follows :

“Lots Four (4), Five (5), Six (6), Seven (7) and Eight (8), according to plat of new survey of 1922, and in what would be section thirty-two (32) if the lines were extended.”

In 1959, Effie C. Kitchen sold to appellant, Alvin J. Ingram, under the following description: “Lots 4, 5, 6, 7 and 8 of said Section 32, according to resurvey of 1922.”

In November 1959, the appellee, Troy Luther, executed an instrument in form of timber deed, but designated “Bill of Sale,” conveying the timber on that portion of Lots 4, 7 and 8 east of the levee to one William Leach, and Leach proceeded to cut timber using a steel barge and other equipment in the process.

In May 1960, appellant Ingram filed a verified complaint in the Greene County Chancery Court against Troy Luther and William Leach alleging ownership in certain described lands in Greene County including

“All of Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 according to plat of new survey of 1922, and in what would be, if the section lines were extended, Section 32.”

In deraigning title in his complaint, appellant recited an unbroken chain of deed conveyances from Barnes through Donaldson, Hudson, Kent, W. T. Kitchen, Kitchen Farms, and Effie C. Kitchen. The complaint then alleged that Leach had trespassed and cut timber from the lands described in the complaint under claim of timber deed from Luther, notwithstanding the fact that Leach had been advised that the land from which the timber was cut did not belong to Luther, “and that Troy Luther only claimed that part of Lots 4, 7 and 8 east of the Old St. Francis Levee” (Emphasis supplied).

The complaint prayed a restraining order against Leach, a judgment against Leach for $3,750.00 and an order of attachment against the barge and equipment belonging to Leach. The complaint then prayed that the court

“. . . enter a decree quieting title to said Lots 4, 5, 6, 7, and 8 in this plaintiff, divesting any right, title or interest in said lots out of the defendant Troy Luther and vesting the title thereto in this plaintiff.”

On June 9, 1960, amendment was filed to the complaint alleging payment of taxes for more than fifteen years. On May 27, 1960, a warning order was filed by the chancery clerk warning the defendants to appear within thirty days and answer the complaint of the plaintiff, Alvin J. Ingram.

An attorney ad litem was appointed and publication of the warning order was completed on August 10, 1960, but proof of its publication was not filed until December 20, 1961. The attorney ad litem filed his Report on August 10,1960, setting out that on July 8, 1960, he wrote a letter to Bill Leach and “copies of the same letter to Mr. Troy Luther, General Delivery, Marysville, California;” and that the copies to Luther were returned. The copy of the letter was filed with the report and the pertinent parts of the letter are as follows:

‘ ‘ Suit has been filed against you in Chancery Court here in Greene County, Arkansas, by the above named plaintiff, claiming title to certain lands in Greene County, Arkansas, and alleging that you have jointly cut timber on said lands and damaged the plaintiff to the extent of $3,750.00, and has attached a steel barge with all equipment thereon in Greene County. The prayer lof the complaint is that title be quieted in the plaintiff to the lands described in the complaint for judgment against the two of you jointly in the amount of $3,750.00, and for injunction against you enjoining you from further trespassing upon the land.
“I am enclosing a copy of the temporary restraining order issued in this case. . .” (Emphasis supplied.)

The restraining order did not mention Lots 4, 7 and 8, but only mentioned,

“Fractional Section 32 lying south and east of the New St. Francis River Levee and Lots 1, 2, 3, 5, 6 and 9 according to the plat of New Survey of 1922, and which said lots would be in Section 32 if the section line were extended, all in Township 18 North, Range 9 East, Greene County, Arkansas.” (Emphasis supplied.)

On January 8, 1961, a warning order was issued warning Lula Mae Luther to appear within thirty days and answer the complaint. One month later, on February 8, 1961, Lula Mae Luther was made a party defendant, by amendment to the complaint, alleging that:

“. . .[T]he said Lula Mae Luther is the wife of Troy Luther and that the deed dated November 12, 1954, recorded in Record Booh 126, page 61, of the records of Greene County, Arkansas, wider which the said Troy Luther claimed title, was made jointly to the said Troy Luther and defendant Lula Mae Luther and, therefore, all of the allegations made in the original complaint against Troy Luther are equally applicable to the defendant Lula Mae Luther.” (Emphasis supplied.)

The amendment then alleged that Mr. and Mrs. Luther aided and abetted Leach in cutting timber from the lands described in the original complaint and prayed judgment against Mr. and Mrs. Luther for $1,000.00 and for attachment against “. . .all of Lots 4, 7 and 8 resurvey of Section 32, in Township 18 North, Range 8 East, G-reene County, Arkansas, east of the Old St. Francis River Levee.”

The attorney ad litem mailed letters to Mrs. Luther c/o Emery Horner, Yuba City, California and e/o General Delivery Marysville, California (the same address he had used six months earlier for Mr. Luther). The (letter mailed to Mrs. Luther imparts exactly the same information to her as the one written to Mr. Luther, including reference to enclosed copy of the temporary restraining order. The amendment to the complaint and the attachment on the land were not mentioned in the letter.

The letters mailed to the appellees were not received by them but were returned to the attorney ad litem. No answer was filed by the appellees and on December 20, 1961, hearing was had on appellant’s complaint. The appellant offered proof to the effect that the land involved was wild and unimproved; that taxes had been paid by Kent, W. T. Kitchen, Kitchen Farms, and appellant, from 1950 through 1961, and the chancellor entered a decree finding among other things,

“That the plaintiff, Alvin J. Ingram, is the owner of Lots 4, 5, 6, 7 and 8, Section 32, Township 18 North, Range 8 East, in Greene County, Arkansas; that said land is wild and unimproved; that the plaintiff and his grantors have held said land under color of title for more than seven (7) years and have continuously paid the taxes thereon during that time; that there is no adverse occupant of said land; that due notice of the filing of this action has been given as required by law, that Troy Luther and Lula Mae Luther, two of the above named defendants, are non-residents of the State of Arkansas, and although having been duly served, as by law required, came not but made default.” (Emphasis supplied).

The chancellor then decreed:

“ [T]hat the title to the said land, to-wit: Lots 4, 5, 6, 7 and 8, Section 32, Township 18 North, Range 8 East, Greene County, Arkansas, be and the same is hereby forever quieted and confirmed in the said Alvin J. Ingram, and any claim of defendants Troy Luther and Lula Mae Luther of any interest in said land is hereby cancelled as a cloud upon the title to said land as vested in the plaintiff, Alvin J. Ingram. ’ ’

On February 6, 1963, appellees filed a complaint against appellant to set aside the original decree and to quiet their own title to:

“All that portion of Lot 4, Lot 7 and Lot 8 East of the St. Francis Levy [sic] and Drainage Ditch in Section 32, Township 18 North, Range 8 East.”

The appellant filed a general denial to the complaint and prayed that the complaint be dismissed and that he be awarded “such general and equitable relief as to which he may be entitled.”

On November 7, 1966, after hearing evidence on the issues thus joined, the chancellor set aside the original decree and quieted title in appellees, “for the reason no service of any kind was had on Troy Luther and Lula Mae Luther, his wife, and said decree is void and of no effect.”

Appellant obviously attempted to follow Ark. Stat. Ann. § 27-354 (Repl. 1962) in attempting service on ap-pellees. This section provides:

“Where it appears by the affidavit of the plaintiff, filed in the clerk’s office at or after the commencement of the action, that he had made diligent inquiry, and that it is his information and belief that the defendant is * * * a non-resident of this state; * * *the clerk shall make and file with the papers in the case, an order warning such defendant to appear in the action within thirty [30] days from the time of making the order.”

Ark. Stat. Ann. § 27-357 (Repl. 1962) provides as follows:

“A defendant against whom a warning order has been made and published shall, upon completion of the publication of the warning order for the fqur [4] weeks required by law, be deemed to have been constructively summoned upon the date of making the order.”

Something more than the mere publication of a warning order is required in subjecting a nonresident, or his interest in land, to the jurisdiction of the court under a proceeding to quiet and confirm title, and the case before us is an excellent example of the good reason why that is so.

The rights and procedure for quieting title to lands in Arkansas are set out in Title 34, Chapter 19 of Arkansas Statutes Annotated §§ 34-1901-1925 (Repl. 1962). Section 34-1901 provides that any person claiming to own land, may bring an action to confirm and quiet title by proceeding in the manner set out. Section 34-1902 provides for the filing of petition in the office of the chancery clerk in the county where the land is located, and for the issuance of summons.

Ark. Stat. Ann. § 34-1905 provides as follows:

“Upon the filing of such petition the clerk of the court shall publish, on the same day of each week, for four (4) weeks in some newspaper published in the county, if one there be, and if not, then in some newspaper having circulation in the county, a notice of the filing of the petition describing the land and the calling upon all persons who claim any interest in the land or lien thereon to appear in said court and show cause why the title of the petitioner should not be confirmed. The chancery court within proper county is hereby authorized and empowered under said notice to find apparent existing liens on said real estate to be barred by the laws of limitation or laches, and decree the cancellation of said liens and the records thereof.” (Emphasis supplied.)

Section 34-1906 provides for the hearing, proof and decree “after proof of publication of the notice aforesaid has been filed. . .” (Emphasis supplied.)

Section 34-1909 is as follows:

“The decree in the cause shall not bar or affect the rights of any person who claims by, through, under or by virtue of any contract with the petitioner, or who was an adverse- occupant of the land at the time the petition was filed, or any person who within seven [7] years preceding had paid the taxes on the land, or a remainderman, unless such person shall have been made a defendant in the petition and personally summoned to answer the same. (Emphasis supplied.)

Section 34-1910 provides as follows:

“Any person may appear within three [3] years and set aside the decree if he shall offer to file a meritorious defense, and every person laboring under the disability of infancy, lunacy, idiocy, [or] married women under the disability of coverture and those claiming under them may set aside the decree at any time within [3] years after the removal of such disability.”

Had appellees received everything mailed to them by the attorney ad litem, they would have only been advised that appellant had filed a suit in Greene County to quiet and confirm title to some unspecified land he owned in that county; that Leach, to whom they had sold some timber, had trespassed on- the land belonging to appellant and had cut some timber therefrom; that appellees were being sued, along with Leach, for damages in trespass; and that Leach was being restrained from cutting timber from the land belonging to appellant and in which appellees had no interest and claimed none. A copy of the complaint was not mailed to appellees, but apparently for the purpose of allaying any curiosity appellees might entertain as to exactly what lands were involved, in the event they should receive the letters, the attorney ad litem enclosed a copy of the restraining order on section 32 east of the new St. Francis River levee and Lots 1, 2, 3, 5, 6 and 9. Appellees’ land east of the old St. Francis River levee was not mentioned in the restraining order, neither was any part of Lots 4, 7 and 8 mentioned in the restraining order or in anything else mailed to appellees. Had ap-pellees seen the warning orders published by appellant, they would have only been informed that they had thirty days in which to answer the complaint filed against them for damages caused by Mr. Leach’s trespass on land belonging to appellant and cutting timber which they did not sell to Leach, and on land never claimed by the appellees.

It would appear, from the overall record in this case, that appellant attempted to quiet title to appel-lees’ land by alleging adverse possession through the payment of taxes in a complaint disguised as an adversary proceeding for money judgment in damage for trespass; The record indicates that an effort was ¡made to submerge a quiet title action in a complaint for damages in trespass requiring nothing more than a thirty day warning order for service on appellees, who are out of state owners of the land involved. Instead of doing’ everything possible to advise appellees that a suit had been filed to quiet title in their land, the attorney ad litem appears to have made a concerted effort to avoid doing so, and he made no effort whatever to advise ap-pellees that their title was being questioned. If the attorney ad litem knew that appellant was claiming title to the land involved, the information he mailed to ap-pellees could only have been designed to mislead appel-lees as to the nature of the law suit filed against them, and to lull them into a sense of false security in the event appellees should receive the information he mailed to them. In the amendment to the complaint making Mrs. Luther a party defendant, the complaint even prayed an attachment before judgment against the very land appellant claimed to own in his original complaint.

Appellees alleged fraud on the court in that appellant concealed from the trial court the fact known to him that appellees had record title to the property and had paid the taxes thereon. A part of appellant’s verified answer to the complaint in canse No. 8881 is as follows:

“In this connection defendant alleges that in the argument to the Court counsel for this defendant stated to the Court that on a part of said area claimed by plaintiff in Cause No. 8366 said parties had on a few occasions attempted to pay taxes on a portion of said land. . .” (Emphasis supplied.)

A few excerpts from the testimony of appellant’s own attorney speaks plainly on this point:

“Q. Mr. Davis, just tell what efforts you made to locate the defendant in that law suit?
A. I was very much interested personally in this property because I represented, me and my firm, represented Mrs. Effie Kitchens who had received from the Kitchens Farm Company, for her stock, one-half interest in the Kitchens estate. She had received all of the land that is shown on Exhibit “A” that we filed here.
# * *
I handled the sales, personally, of all of that property that Mrs. Kitchens received out of the Kitchens estate. . .Now Dr. Ingram is my son-in-law ancf I prevailed on him to buy this land from Mrs. Kitchens and because of the fact that he is my son-in-law and the further fact that I had gotten him to buy this land, I was vitally interested in the title. I had the abstract made and brought down to date and I had never heard of Troy Luther until a Mr. William Leach started cutting timber over there and Dr. Ingram’s tenant called me and told me.
# # #
I did know Mr. Luther was paying taxes occasionally and then letting them go and redeeming them. I found that from the record.
I knew from the deed from Mrs. Kitchens that Luther was claiming it.
Q. At the time you got your deed from Mrs. Kitchens to the lots -that are involved in this law suit, you were on notice that Troy Luther had been paying taxes on these particular lots for more than fifteen years?
A. From the standpoint of the record, yes. But from the standpoint of personal knowledge, no.
Q. You knew when you filed that law suit Troy Luther had a warranty deed and record vested title to the property in question to he and his wife?
A. Certainly I hneiv it at that time. (Emphasis supplied.)

Appellant here was his attorney’s son-in-law. He is charged with the knowledge of his attorney. Appellant’s attorney knew from the deed and tax records, that ap-pellees had record title to the property involved and had been paying their taxes thereon for fifteen years when his suit for damages in trespass and to quiet title was filed. He was bound to have known that Kitchens Farms had no title to this land when it was deeded to Effie Kitchens — he represented Effie Kitchens at that time and personally handled the transaction whereby she acquired her deed.

If appellant did not know of appellees’ title and continuous payment of taxes when the complaint was filed in case No. 8366, the quiet title portion of that law suit was not such adversary proceeding that would support a confirmation decree on constructive service on an out of state owner without notice, or notice filed, and without personal service.

If appellant did have full knowledge of appellees’ record title and payment of taxes, then certainly in the light of the misleading information mailed to appellees by the attorney ad litem, appellant’s statement, through his attorney, to the trial court that appellees “had on a few occasions attempted to pany taxes on a portion of said land” as alleged in his verified answer, was misleading and smacks of fraud, and will not be condoned by this court on appeal, where we try .equity cases de novo.

We conclude that the decree entered in case No. 8366, insofar as it confirmed appellant’s title in appel-lees’ land, was void for several reasons. It was void- for the reason that the notice was not published as required by Ark. Stat. Ann. § 34-1905, supra, and as recited in the decree as having been done. The decree.was void because it was rendered before proof of publication of the aforesaid notice had been filed. Even if the notice had been published as required by § 34-1905, supra, and the decree had been rendered after proof of the publication of notice had been filed as provided in § 34-1906, supra, still appellees’ rights would not have been affected by the decree, because appellees had paid the taxes on the land, not only within seven years, but for fifteen years preceding, and they were not personally summoned to answer the petition in which they were made defendants, as provided in § 34-1909, supra.

Even if all the statutory requirements had been met and complied with and the first decree had been a perfectly valid decree, still under § 34-1910, supra, ap-pellees had three years from the entry of the decree in which to appear and set aside the decree by offering to file a meritorious defense.

Appellant joined the issues by general denial in his answer. The record in the first case was consolidated with the record in the second, and for all practical purposes the separately numbered cases were consolidated at the trial of the second numbered case, and no objections were made by the appellant to this procedure.

We are of the opinion that the chancellor was correct in setting aside his original decree. We are also of the opinion that the chancellor’s decree, quieting and confirming appellees’ title to the property involved, is not against the preponderance of the evidence and should be affirmed.

Affirmed.

Harris, C. J., concurs in the result.

BrowN and Byrd, JJ., concur.

George Bose Smith and FoglemaN, JJ., dissent.

Conley Byrd, Justice,

concurring. I concur in the result reached in the majority opinion hut not for the reasons therein stated. To me, the decree in case No. 8366 in the Greene Chancery Court was void for lack of strict compliance with the constructive service statutes. Ark. Stat. Ann. § 29-404 provides:

“Before judgment is rendered against a defendant constructively summoned, and who has not appeared, it shall he necessary—
“First. An attorney he appointed at least thirty [30] days 'before the judgment is rendered to defend for the defendant and inform him of the action and of such other matters as may he useful to him in preparing for his defense. ...”

The notice mailed to Mrs. Luther, c/o General Delivery, Marysville, California, hy the attorney ad litem is as follows:

“Dear Mrs. Luther:
‘ ‘ Suit has been filed against you in Chancery Court here in Greene County, Arkansas, hy the above named plaintiff, claiming title to certain lands in Greene County, Arkansas, and alleging that you have jointly cut timber on said lands and damaged the plaintiff io the extent of $3,750.00; and has attached a steel barge with all equipment thereon in Greene County. The prayer of the complaint is that title be quieted in the plaintiff to the lands described in the complaint for judgment against the defendants jointly in the amount of $3,750.00 and for injunction against you enjoining you from further trespassing upon the land.
“My duty as attorney ad litem is to write you this letter and inform you of the existence of the said law suit; and to warn you that unless you file an answer within thirty days from the first publication of the warning order, or thirty days from the date of this letter, that judgment will be taken against you, and titles to the lands quieted in the plaintiff.
“If you desire to make a defense to this action, you should contact me or some other attorney in this area and prepare your defense.
“I am enclosing a copy of the temporary restraining order issued in this case which bears the signature of Chancellor C. M. Buck.”

The letters to Mrs. Luther and Mr. Luther are' identical. Neither the letter nor the temporary restraining order forwarded with it describes any portion of Lots 4, 7 and 8 in Section 32. Obviously, had the Luthers received the letters, they would not have been given enough information to employ an attorney to represent them in the quiet title phase of the litigation.

Furthermore, the mailing of the letter “e/o General Delivery, Marysville, California,” is an indication to the postmaster that the addressee will call for the letter at the postoffice. The postoffice in every town has, in addition to its street addresses and postoffice box addresses, a section known as “General Delivery,” which is usually kept in alphabetical order for those persons who are expected to call at the postoffice for their mail. The record here shows no reason why the attorney ad litem should expect Mr. and Mrs. Luther to call at the postoffice for mail addressed to General Delivery. On the contrary, the record shows that they had a street address.

We have consistently held that a strict compliance with constructive service statutes is a prerequisite to the validity of a judgment. Missouri Pac. R. R. Co. v. McLendon, 195 Ark. 204, 46 S. W. 2d 626 (1932); Swartz v. Drinker, 192 Ark. 198, 90 S. W. 2d 483 (1936); United Equitable Ins. Co v. Karbar, 243 Ark. 631, 421 S. W. 2d 338 (1967).

Therefore, I agree with the trial court that the constructive service as shown by this record was void, and that the decree was subject to the collateral attack.

Brown, J., joins in concurrence.

John A. Fogleman, Justice.

I respectfully dissent. In order to consider the case in proper perspective, I will from time to time call attention to certain premises of the majority opinion that I do not feel to be justified.

First, there are statements indicating that the first case was consolidated with the second case, without objection by the appellant. The record in the first case was offered in evidence as was appropriate in a proceeding to attack the decree therein, but there was in no sense any consolidation of the actions, or of the records.

It is clear that the original proceeding was an adversary proceeding by appellant against appellees et al, to litigate conflicting claims on the assertion that appellant’s title should be quieted as the superior one. Under these circumstances none of the statutes on the subject can in any way control or limit the power of the chancery court. See 6 Ark. Law Review 86, 103, 104, 105.

An early case settling this point was Knauff v. National Cooperage & Woodenware Co., 87 Ark. 494, 113 S. W. 28. While the statute there provided a procedure for confirming tax titles, the identical principle was involved. Appellant in that case sought to quiet his title under a clerk’s tax deed against a claim of the appellee who was paying taxes on the land in dispute. Appellee defended by demurrer on the ground that appellant had not alleged that he had paid taxes on the lands for at least two years after the expiration of the right of redemption in compliance with the statute, then Kirby’s Digest §§ 661-675, now Ark. Stat. Ann. § 34-1918 to § 34-1925 (Repl. 1962). In disposing of this contention, this court said:

“ * * * The vice of this contention is that it seeks to apply the requirements of the statute to adversary suits, such as this one, between parties for the purpose of litigating conflicting titles and quieting the superior one. The statute does not control in such suits, as the jurisdiction of chancery courts over such subjects is exercised independently of statute. The statute, in so far as it confers jurisdiction in such cases over which courts of equity formerly exercised jurisdiction, is to that extent merely declaratory of existing powers, and not a grant of additional powers. Hempstead v. Watkins, 6 Ark. 317, 42 Am. Dec. 696; Boyce v. Grundy, 3 Pet. 210, 7 L. Ed. 655.
The complaint alleges that the land is unoccupied by an adverse claimant and that appellee is asserting title thereto and paying taxes on the land. This states a cause of action in an adversary suit, and, if sustained by proof, is sufficient to entitle appellant to relief. The court should, under thair state of the case, grant the relief prayed for by removing the alleged cloud and quieting appellant’s title. Even if appellant is not entitled under the statute to a general decree for confirmation of the tax sale, the complaint states a case for relief in this adversary suit against appellee, and it was error to sustain a demurrer to the complaint, which is at least good to the extent that it states grounds for equitable relief against appellee.”

Thus, it is crystal clear that the statutes in such cases are designed to provide a means for a general quieting of titles, or, as is sometimes said, to declare a title to be in a plaintiff as against the world. The adversary proceeding simply establishes the superiority of the title of one party as against that of the other. The doctrine that the statutes do not control was recognized and applied in Patterson v. McKay, 199 Ark. 140, 134 S. W. 2d 543. There it was asserted that the court of equity had no jurisdiction to cancel a tax sale and donation certificate because the defendant was in possession of the land in question. The defendant relied on § 1 of Act 79 of 1899 [now Ark. Stat Ann. § 34-1901 (Repl. 1962)], the same act which the majority applies to affirm the lower court. In rejecting this contention, the court, speaking through Mr. Justice Baker, said:

“* *The defendant in this action was in possession and on account of his possession he pleaded a lack of jurisdiction in the trial court to grant any relief to the plaintiff, by first filing a motion to dismiss, which being denied, he pleaded the same fact of his possession as an answer. Appellant insists that this suit is one to quiet title and that since appellee is not in possession he may not invoke the jurisdiction of the chancery court. For the position taken the appellant insists the suit must be regarded as a statutory proceeding, provided for by section 10958 et seq., Pope’s Digest. This is an erroneous conception of the intent and purpose of these statutes providing for the exercise of chancery jurisdiction to quiet title to real property. A recognition that such statutes (Chapter 136, Pope’s Digest) do not grant jurisdiction but only establish a statutory method of exercising a jurisdiction already existing, prior to the enactment of the statutes mentioned, will make clear and understandable many seeming inconsistencies in decisions of the courts.”

The situation is no different because the service of process is by constructive service. A state has the power to provide for adjudication of titles to real estate within its limits against non-residents who are brought into court by constructive service. Arendt v. Griggs, 134 U. S. 316, 10 S. Ct. 557, 33 L. Ed. 918.

A decree setting aside a deed and cancelling a title of a non-resident defendant summoned only by warning order is valid as an action in rem, the title being established by mere force of the decree. McLaughlin v. McCrory, 55 Ark. 442, 18 S. W. 762. The statutes relied upon to give in rem jurisdiction under the rule in the Arendt case were §§ 3953-3954, Mansfield’s Digest [Rev. Stat. Ch. 23, §§ 123-124; Ark. Stat. Ann. §§ 29-126, 29-127 (Repl. 1962)].

In Frank v. Frank, 175 Ark. 285, 298 S. W. 2d 1026, it is clearly demonstrated that two different and totally unrelated functions are served by (1) service on a defendant by publication of warning order and (2) publication of notice calling upon all persons claiming any interest in the lands described to show cause why petitioner’s title should not be confirmed. Even though the action to quiet title was a statutory one in that case, this court said that no jurisdiction of a named defendant was acquired by publication of the notice required by statute, as there was no service upon him. According to the opinion in that case, the only way to acquire jurisdiction over named defendants is by publication of warning order for the requisite period, by appointment of an attorney ad litem at least thirty days prior to the court’s action, and by the filing of a report by the attorney ad litem. This clearly demonstrates that the publication of statutory notice which would be required by the majority opinion would serve no function at all where defendants are named — even in a statutory action to quiet title.

The finding of the trial court that there was no service on appellees in the original action by appellant to quiet title is clearly erroneous. This is revealed when the record in that case is examined. A warning order was published for four weeks as required by statute. An attorney ad litem was appointed more than thirty days prior to the rendition of the decree attacked in this proceeding. He filed his report before the decree was rendered. Thus, the trial court had jurisdiction to render the original decree.

The decree attacked contains specific findings that appellees were duly served as required by law and that due notice of the filing of the action had been given as required by law. Recitals such as these are conclusive on that subject, on collateral attack, unless the record itself contradicts the finding. Pattison v. Smith, 94 Ark. 588, 127 S. W. 983; Cassady v. Norris, 118 Ark. 449, 177 S. W. 10; Turley v. Owen, 188 Ark. 1067, 69 S. W. 2d 882; Kindrick v. Capps, 196 Ark. 1169, 121 S. W. 2d 515. There is a conclusive presumption in such cases that sufficient and competent evidence was before the court to justify the findings. McLain v. Duncan, 57 Ark. 49, 20 S. W. 597; Price v. Gunn, 114 Ark. 551, 170 S. W. 247; Matthews v. Williamson, 143 Ark. 281, 220 S. W. 58.

Judgments or decrees entered upon constructive service by publication will be given tbe same conclusive effect and are entitled to the benefit of the same favorable presumptions in this regard as those on personal service. Crittenden Lbr. Co. v. McDougal, 101 Ark. 390, 142 S. W. 836; Hobbs v. Lenon, 191 Ark. 509, 87 S. W. 2d 6.

Appellees’ complaint sought not only to cancel the decree in appellant’s original action, but to quiet title to a portion of the lands in themselves and to recover judgment against appellant for the sum of $3,750.00. As such, it was a collateral attack on the former decree. Ordinarily, except in cases where an attack upon a judgment is authorized by statute, it is necessary, in order to constitute a direct attack, that some step be taken to impeach its validity in the action itself, such as by appeal or motion to vacate or modify. State v. Wilson, 181 Ark. 683, 27 S. W. 2d 106. In an action to have title to lands quieted or confirmed, a default decree quieting title in a defendant against plaintiff in an earlier action was held conclusive, even though erroneous, until reversed on appeal or set aside in a direct proceeding brought in the same action for that purpose. Hooper v. Wist, 138 Ark. 289, 211 S. W. 143.

In a case strikingly similar to the one now before us in that the complaint contained allegations of fraud in obtaining a default judgment not supported by evidence, it was held that the attack was a collateral one, not being within the purview of § 29-506, because of failure to prove the allegations as to fraud. Turley v. Owen, 188 Ark. 1067, 69 S. W. 2d 882. In that opinion this court quoted with approval, and applied, definitions given in the Hooper case, saying:

“In Hooper v. Wist, 138 Ark. 289, 211 S. W. 143, 145, we held: ‘This brings us to a consideration of whether the present case is a direct or collateral attack on the former chancery decree. A “direct attack on a judgment” is usually defined as an attempt to reform or vacate it in a suit brought in the same action and in the same court for that purpose. On the other hand, a “collateral attack upon a judgment” has been defined to mean any proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered, or by appeal, and except suits brought to obtain decrees declaring judgments to be void ab initio. 15 R.C.L. 838, par. 311. This is the effect of our decisions in the cases above cited as well as numerous other decisions of the court.’ ”

See, also, Wilder v. Harris, 205 Ark. 341, 168 S. W. 2d 804, wherein the attack was made by filing a motion in the action in which the questioned judgment had been rendered.

Appellees’ attack was not made in the action in which the decree they seek to have vacated was rendered, nor was it under any statutory ground for an independent proceeding. Unless it could be said that it was brought for the purpose of having the judgment declared void ab initio for want of service on appellees (as was the case in Brick v. The Sovereign Grand Lodge, 196 Ark. 372, 117 S. W. 2d 1060) and not in a proceeding contemplating some other, relief or result, it is a collateral one. Brooks v. Baker, 208 Ark. 654, 187 S. W. 2d 169. Appellees’ complaint in this case does contemplate other relief. It first deraigns title in appellees. It then cites particulars in which they contend that the earlier decree is erroneous and that the errors were because of fraudulent representations on behalf of appellant. While appellees ask that the former decree be set aside and vacated, the prayer for quieting of title in appellees and for a money judgment in their favor certainly contemplates other relief.

The majority apparently justifies the attack on the original decree by saying that constructive service was improper. Even if the attack here can be said to be a direct one, it must fail. The finding of the trial court that there was no service on appellees in the original action by appellant to quiet title is clearly erroneous. The record reveals that an attorney ad litem was appointed for Troy Luther on July 8,1960. Warning order made July 2, 1960, for Troy Luther, upon propeí affidavit, was published four times, the first insertion having been on July 20,1960, and the last on August 10, 1960. Although the record indicates that warning order was made for Lula Mae Luther on January 8, 1961, and that the attorney ad litem for her accepted his appointment on the same date, the amendment to the complaint by which she was made a party bears a filing endorsement of February 8,1961. The verification of that amendment and the affidavit for warning order were dated January 20, 1961. The warning order and appointment of attorney ad litem appeared in the transcript of the original proceeding between the amendment to the complaint and an attachment bond which also bears a filing endorsement of February 8th. It is obvious that the warning order and appointment of attorney ad litem were attached to the amendment to the complaint, in blank, at the time of filing with the clerk and that it was contemplated at the time of preparation of these instruments that they would be filed in the month of January. It is also obvious that the clerk, in issuing the warning order, and the attorney ad litem in accepting his appointment, filled in the day of the month without changing the designation of the month. The conclusion seems inescapable to me that the warning order was actually issued on February 8th and the attorney ad litem accepted his appointment on the same date. The warning order for Lula Mae Luther was published four times, the first publication having been on March 7,1961, and the last on March 29,1961. Report of the attorney ad litem as to Troy Luther was filed August 10, 1960, and as to Lula Mae Luther on May 8, 1961. The decree was not rendered until December 20, 1961. Thus, the requirements for constructive service were met. See Ark. Stat. Ann. §§ 27-354, 27-355, 27-357, 29-404 (Repl. 1962); Frank v. Frank, 175 Ark. 285, 298 S. W. 1026; May v. National Bank of Eastern Arkansas, 231 Ark. 588, 331 S. W. 2d 697. The failure of the attorney ad litem to correspond with the appellees does not affect the validity of the decree, although there might be a question as to his right to compensation. Brown v. Early, 63 Ky. (2 Duvall) 369 (1866); Thomas v. Mahone, 72 Ky. (9 Bush) 111 (1872).

I disagree with the statement by the majority that the warning order in the case would have led the ap-pellees to believe that they were only called upon to defend an action for damages for timber removed and trespass on lands they never owned. The warning orders read:

‘ ‘ The defendants are warned to appear in this court within thirty (30) days and answer the Complaint of Plaintiff, Alvin J. Ingram.”
“Defendant Lnla Mae Lnther, is warned to appear in this court within thirty (30) days and answer the complaint of the plaintiff, Alvin J. Ingram.”

They are in proper form and do not mention any land.

The majority also suggests that the decree in the original action was void because a proof of publication of warning order bears a filing endorsement one day after the decree was rendered. A decree upon service by publication is not void merely because proof of publication was not made in the manner required by statute. Johnson v. Lesser, 76 Ark. 465, 91 S. W. 763. Where the warning order has been published, failure to make proof of publication in the manner required by statute is an irregularity only and does not affect the jurisdiction of the court. Clay v. Bilby, 72 Ark. 101, 78 S. W. 749. Service is complete when the warning order has been published, , not when proof is made. Ark. Stat. Ann. § 27-357 (Eepl. 1962); Blackwell Oil. & Gas Co. v. Maddux, 181 Ark. 726; 27 S. W. 2d 514. There is no contention that the warning order was not published. The statute providing for a means of proof of publication [Ark. Stat. Ann. § 15-105 (Repl. 1956)] is by no means intended to make that method the sole or exclusive means of showing publication. Allen v. Allen, 126 Ark. 164, 189 S. W. 841; Straughan v. Bennett, 153 Ark. 254, 240 S. W. 30; Mahm v. Wilson, 169 Ark. 117, 273 S. W. 383. Furthermore, the fact that such proof was not filed until after the judgment is not fatal. Where proof of publication fails to show that a warning order was published the requisite number of times, an amendment correcting the proof of publication after judgment is proper. In Blackwell Oil & Gas Co. v. Maddux, supra, this court said there was no reason why the amendment could not be filed after, as well as before, judgment. I find nothing incomplete or insufficient in the warning order.

The statement that the record indicates an effort to “submerge” an action to quiet title in a complaint for damages in trespass is not borne out by the record. The very first allegation in the complaint is a statement of the ownership of a large tract of land of which the portion Luther was alleged to have some interest in was only a part. This was followed by a deraignment of title to tracts of land including, but not limited to, the lands in which appellant said Luther claimed some interest. These are primary allegations for an adversary action to quiet title. The allegations as to trespass and timber cutting by Leach then follow. The prayer of the complaint clearly asks for a decree quieting title against Luther. How can this primary phase of the litigation be said to be “submerged?” I submit that the original action against Leach was incidental to the quieting of title.

Nor do I see how it can be said that the attorney ad litem attempted to conceal the true purpose of the original action from the Luthers. In this connection the letter from the attorney ad litem clearly states that “[s]uit has been filed *** by *** plaintiff claiming title to certain land in Greene County* * *” and that “ [T]he prayer of the coinplaint is that title be quieted in the plaintiff to the lands described in the complaint * * *.” Of course, appellees have never claimed they were misled by the letters. They just said they did not get them, and the report of the attorney ad litem confirms their testimony. This was a fact known to the court when the decree was rendered in the original action.

The only allegation of fraud in the complaint in the present case is that the recitals of the deraignment of title constitute fraud and that appellant did not disclose to the court that Luther had paid taxes on the land. No proof of fraud is shown. The majority opinion seems to imply that there was some collusion between appellant and the attorney ad litem to see that the notice from the latter would not be received by the Luthers. Yet, there is no such allegation or proof. I find nothing whatever to indicate that either appellant or the attorney ad litem knew the street address of appellees. Someone showed some diligence, as indicated by a correct post office address. If there had been a deliberate attempt to prevent the Luthers from getting the letters, it seems unlikely that they would have been addressed to the proper post office. In considering this point, the majority opinion quotes some of the testimony of appellant’s attorney. There is other testimony that is much more to the point which I deem necessary to quote in this opinion:

“It was hard for me to get anything out of Leach, I tried to get Mr. Luther’s address from him and all he would give me was Maryville, California. That’s all I could find. Dr. Ingram had a doctor friend who lived at Cardwell and I went with him to see this doctor and later I went by myself back to see the doctor and the doctor was trying to get me those addresses. I did not know Mrs. Luther was included in it at first and I could [see] she was in the deed, included as an owner and I made her a party likewise and I did everything possible to acquaint the attorney ad litem -with the true residence of these defendant's.”

It seems that the majority find» an alternate basis for setting aside the decree for fraud practiced upon the court. This is founded upon the premise that false pleadings were filed and false testimony was given in the original proceeding. Even if this were so, it would constitute no basis for setting aside a decree after the expiration of the term at which it was rendered. The fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the case and does not consist of any false or fraudulent act or testimony, the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment. Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517; Pattillio v. Toler, 210 Ark. 231, 196 S. W. 2d 224; Croswell v. Linder, 226 Ark. 853, 294 S. W. 2d 493. In Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234, I find a particularly applicable quotation from Hendrickson v. Farmers’ Bank & Trust Co., 189 Ark. 423, 73 S. W. 2d 725, 726, which is as follows:

<<* # # «ijtjrn fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, in issue in the proceeding before the court which resulted in the decree assailed. James v. Gibson, 73 Ark. 440, 84 S. W. 485; Johnson v. Johnson, 169 Ark. 1151, 277 S. W. 535; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20.’ ”

There is a proper method for an attack of this sort. Appellees might have sought a new trial within two years under Ark. Stat. Ann. § 27-1907 (Repl. 1962) without even being required to show a meritorious defense and without being required to assume the burden of proof. Owen v. Union Central Life Insurance Co., 191 Ark. 1014, 88 S. W. 2d 1002; Wright v. Kaufman, 192 Ark. 400, 91 S. W. 2d 596; Wright v. Burlison, 198 Ark. 187, 128 S. W. 2d 238.

I would reverse the decree of the lower court and dismiss the action.

I am authorized to state that George Rose Smith, J., joins in this dissent.

       Perhaps it might be mere appropriate to say that the action was one to cancel any claim of appellees as a cloud on the title of appellant. If there is a distinction, common usage has so blurred it that it is not now regarded as having any significance.

       The decree appealed from granted all this relief except for the money judgment.

       The only statutory authorization for an independent proceeding to vacate a judgment is contained in Ark. Stat.- Ann. § 29-508 (Repl. 1962) which is § 573, Civil Code. The grounds on which such a proceeding is authorized are contained in the 4th, 5th, 6th, 7th and 8th subdivisions of Ark. Stat. Ann. § 29-506 (Repl. 1962) which is § 571, Civil Code. There is no allegation in the complaint of appellees which could be said, even remotely, to suggest a basis for vacating the decree here under the 5th, 6th, 7th or 8th subdivisions. While there is an allegation that the original decree was obtained by fraudulent and untrue representations made to the court, there was no finding that such was true by the chancellor- and there was no evidence to justify such a finding. It is at least doubtful that the allegations of fraud in the pleading are proper grounds under the act because they relate to the truth or falsity of evidence on the issues made in appellant’s pleading.

       The judgment attacked in that case did not reflect the giving of the required notice.

       The first case, having been decided before our adoption of the Civil Code, is binding, since § 29-404, with insignificant amendments, is § 445 of the Code which was adopted from the Kentucky Code. The latter case is persuasive. See Crawford, Civil Code of Arkansas; State v. Arkansas Brick & Mfg. Co., 98 Ark. 125, 135 S. W. 843; Hanson v. Hodges, 109 Ark. 479, 160 S. W. 392; St. Louis S. W. Ry. Co. v. Russell, 113 Ark. 552, 168 S. W. 1083.

       I am not unaware of the holding that one constructively summoned in an action to quiet title may appear within three years and have a retrial of the case upon-making a cost bond and showing a meritorious defense. Lawyer v. Carpenter, 80 Ark. 411, 97 S. W. 662; Abbott v. Butler, 211 Ark. 681, 201 S. W. 2d 1001. I submit that a close examination of these cases will show that in each the original action was a statutory one, and not an adversary one under the inherent powers of equity. This is quite clear in the latter case and the implication is strong that the farmer also involved a statutory action. In view of the clear holdings cited herein to the effect that the statute has no application to an adversary action, I think the conclusion that these cases were brought under the statute is inescapable.


author: J. Feed Jones, Justice. John A. Fogleman, Justice,

text:
    Jerry Dale CULLUM v. The STATE of Arkansas
    5317
    424 S. W. 2d 523
    Opinion delivered March 4, 1968

      Kenneth Goffelt, for appellant.

      Joe Purcell,. Attorney General; Bon Langston, Asst. Atty. Gen., for appellee.
   J. Feed Jones, Justice.

On October 3, 1966, the appellant, Jerry Dale Cullum, was charged in an information filed by the prosecuting attorney of Saline County with petit larceny and burglary, consisting of burglarizing the home of Albro Taylor in Saline County and stealing a Texaco Credit Card. On October 13, 1966, he entered a plea of guilty in the Saline County Circuit Court and was sentenced to the state penitentiary for a period of two years under a commitment reciting that he had specifically and intelligently waived counsel. On August 10, 1967, he filed a motion in the Saline County Circuit Court praying that the sentence be vacated and set aside and that he be permitted to enter a plea of not guilty to charges in the information, and that he be given a jury trial.

Appellant’s motion was treated as a petition for relief under Criminal Procedure Bule No. 1, and he testified in support of his petition at a hearing granted by the Saline County Circuit Court. The trial court held that appellant had intelligently waived the benefit of counsel when he entered Ms plea of guilty and appellant’s motion was overruled and Ms petition denied. On appeal to tMs court the appellant relies on the following points for reversal:

“The denial of the motion by the lower court violates defendant’s legal and constitutional rights, because :
A. He was not represented by counsel when a plea was entered.
B. The plea was entered because of promises of reward and protection made to him by representatives of the state and prosecution which promises were relied on by the appellant, and which were not kept making the plea legally involuntary, and the trial court accepts the truth of this in its finding of facts.
C. Appellant says he is not guilty of the charge, and the trial court accepts the truth of Ms statement in the findings of fact.”

The record reveals that appellant was on probation under a seven year suspended sentence from the/ Conway County Circuit Court on a felony charge of false pretense in connection with mortgaging his mother’s cattle. While free under this suspended sentence, appellant purchased gasoline in Conway County on a credit card issued to Albro Taylor, a resident of Saline County. He was arrested at his home in Van Burén County by the state police and was subsequently charged in Conway County with the unlawful use of the credit card, and in Saline County with obtaining it through burglary and larceny committed in that county.

Following appellant’s plea of guilty and sentence in the Saline County Circuit Court, he was returned to Conway County where the charge on the unlawful use of the credit card was dismissed, hut the suspension of the seven year sentence on the false pretense charge was revoked and he was committed to the penitentiary to serve the two year sentence from Saline County concurrently with the seven year sentence from Conway County.

The appellant’s testimony was the only evidence offered at the hearing on the Bule 1 petition, and as to the promises made to him in connection with his plea of guilty, he testified as follows:

“Q. What did they tell you about the case at Mor-rilton? I am talking about the credit card case?
A. They told me they would give me two years on it and they was supposed to give me two years at Benton and run them concurrent and I would have to go for eight months.
Q. The agreement, so to speak, between you and the Prosecuting Attorney and Mitchell at Morrilton was you was to enter a plea to the credit card case there?
A. Yes.
Q. And come down here and enter a plea in this case here?
A. Yes.
Q. And they said yon would get two years on each, count and they would run concurrent?
A. Yes.
Q. And you would get out in how long?
A. Eight months.
Q. Now then, what if anything did Mitchell and the Prosecuting Attorney at Morrilton say to you with reference to the seven year sentence which you was already under by reason of a probationary sentence in the false pretense case?
A. As I said, Bill Mitchell called the Prosecuting Attorney. He got my record and brought it up there and he said, ‘This won’t even be brought up. This we will just forget that.’
• • •
Q. Was that what induced you to come down here and enter the plea in Saline County?
A. Yes. He told me if I took it to court and everything, the seven years would be provoked [sic.] He couldn’t keep it from being provoked [sic].
Q. If you would get that out of the way by a plea, the seven years wouldn’t be bothered?
A. Yes, sir.
Q. You say Mitchell and the Prosecuting Attorney both told you that?
A. Yes, sir.
Q. Was it on that promise you came down and entered a plea of guilty in this Court?
A. Yes, sir. It was set up before I arrived at Benton.”

At the close of the hearing, the trial court denied the petition of appellant’s motion upon the following findings of fact:

“On the basis of his testimony, and I am going to consider everything he said is the truth, except for the fact he testified that I didn’t offer to appoint counsel for him, and I am not considering that point because I know I did. I am going to consider every word he said is the truth, and I am saying no constitutional right of his has been violated in this case.”

The trial court’s finding to the effect that appellant waived the benefit of counsel is sustained by the evidence. The commitment recites this fact, the appellant heard the court advise other defendants as to their right to counsel, but didn’t hear the court so advise him. The trial judge did remember that he did so advise the appellant, and his holding on this point is not error.

The prejudicial error occurred in this case before appellant was represented by counsel and before he was advised of his right to counsel. The error lies in what appellant says was told to him by the state police officer, Bill Mitchell, who arrested him, and by the prosecuting attorney of Conway County after a telephone conversation with the prosecuting attorney of Saline County, before he was ever arraigned on the charges either in Conway County or in Saline County. Appellant testified that “they told me they would give me two years at Benton and run them concurrent and I would have -to go just for eight months. * * * He told me if I took it to court and everything, the seven years would be provoked [sic]. He couldn’t keep it from being provoked [sic].”

It does not appear from the record that the trial judge of the Saline County Circuit Court or the trial judge of the Conway County Circuit Court knew anything at all of the arrangement between the arresting officer, the appellant, and the prosecuting attorneys until after the pleas of guilty were entered and sentence imposed in the Saline County Circuit Court. Appellant testified that he was not guilty of charges in Saline County and that he only entered his plea of guilty in that county in order to avoid the revocation of the seven year suspended sentence in Conway County, which the arresting officer could not prevent in the event he stood trial. In other words, appellant was trading the revocation of a seven year sentence in Conway County for a two year sentence from Saline County, and if appellant testified truthfully as to these promises and his reliance thereon, his plea of guilty was not voluntary. The testimony of the appellant on this point was not controverted or impeached by the state and the trial court accepted it as true. Apparently the trial court was under the impression that the promises made to appellant by the arresting officer all related only to the charges filed against him in Conway County. We do not so interpret the record.

Appellant testified that he was promised by the state police officer and by the prosecuting attorney of Conway County, after a telephone conversation with the prosecuting attorney of Saline County, that if he would enter pleas of guilty to the charges in both Saline County and Conway County, he would receive two year sentences on each of these charges, to run concurrently with each other, and that the suspension of the previous seven year sentence would not be revoked. Appellant testified further that he relied upon this agreement and was thereby induced to enter a plea of guilty to crimes which he says he did not commit in order to avoid revocation of the seven year suspended sentence. Although the appellant named the officers who made the promises upon which he says he relied, his testimony was not controverted. Accepting the appellant’s testimony as true as the trial court did, and as we must do on the record here, we conclude that appellant's plea of guilty was not voluntary and that the trial court should have vacated the sentence thereunder and granted the appellant a trial on the charges against him.

We are of the opinion that the order of the trial court should be reversed on appellant’s point “B” and that appellant should be granted a trial on the charges of burglary and petit larceny. We find no merit in appellant’s points “A” and “C”.

Reversed and remanded.

BROWN and Fogleman, JJ., dissent in part.

John A. Fogleman, Justice,

dissenting. I agree that this case must be reversed and remanded. I do not agree that it is necessary that a new trial be granted to appellant automatically upon remand. After appellant testified, the trial court disposed of this case on its own motion, much as if the matter were before it on a demurrer to evidence. Appellant had corroborating witnesses to offer. The state was not given any opportunity to offer testimony contradicting appellant. The State of Arkansas, as a party in these cases, is not just the prosecuting attorney and the law enforcement officers. It is the people of the state. They, too, are entitled to a day in court. I would remand this case with directions that the State of Arkansas have the option of further hearing on the motion or a new trial. If the state elected further consideration of the motion, then appellant should be first permitted to offer any other competent evidence he desires, after which the state should offer its evidence.

I am authorized to state that Brown, J., joins in this dissent.


author: Conley Byrd, Justice.

text:
    Marshall Wade, d/b/a WADE CONSTRUCTION CO. v. PIONEER CONTRACTING CO., INC.
    5-4385
    424 S. W. 2d 852
    Opinion delivered March 4, 1968

      Bruce Ivy and Wright, Lindsey & Jermings, for appellant.

      William V. Alexander and Henry J. Swift, for ap-pellee.
   Conley Byrd, Justice.

Appellant Marshall Wade, d/b/a Wade Construction Company, appeals from a judgment in favor of Pioneer Contracting Company, Inc., rendered upon Wade’s alleged nonperformance of his subcontract with Pioneer for the common excavation and low-grade embankment material on a two-mile section of Interstate Highway 55 in Mississippi County, Arkansas. Sections. 2 and 3 of the subcontract, being the two items here involved, provided:

“Section 2. Subcontractor and contractor agree that the items of work to be performed by subcontractor on the above general contract and the prices the subcontractor is to receive are as follows:
ITEM A'PPROX. UNIT DESCRIPTION UNIT TOTAL NO. QTY. PRICE PRICE
SP&103 112,937 CY Common Excavation $ .30 $33,379.90*
SP&105 04,720* CY Embankment Material $ .40 $23,891.60*

Section 3. Subcontractor agrees to complete the above items of work promptly and in such manner that other items of work under the general contract will not be delayed. If such a delay in the completion of the general contract be caused by subcontractor, and such delay shall, result in liquidated or other damages being assessed against contractor on such general contract, the subcontractor agrees to be liable for and to pay such damages for which he is directly responsible and any expense of the contractor incident thereto.”

Wade commenced the job in 1960 and moved most of the dirt yardage involved, except on the north 200 feet thereof, which was held up. because of a culvert or bridge that had not been completed by another subcontractor. He returned to the job in 1961 and left it in October of that year. The testimony is conflicting as to whether Wade had finished his job when he left in 1961, but a preponderance thereof shows that there remained work to be done on grades, the cutting of median ditches, and the finishing of slopes. Pioneer did not complete its contract with the Highway Department until May 1963. Of course, during the intervening time some deterioration occurred which required additional work by Wade.

It is undisputed that the yardages estimated by the Highway Department prior to construction, set out in Section 2 of the subcontract, were greatly overestimated. The final cross sections show that 104,568 cubic yards of common excavation and 9,301 cubic yards of low-grade embankment were moved in complying with sections 103 and 105 of the Highway Commission specifications.

The matter was referred to a special master, who allowed Wade credits for $3,955.39 in retainage; $1,125 for right-of-way clearing not in the contract; and $1,-115.68 wrongfully withheld by Pioneer for drainage work. In making this computation the master disallowed all moving expense claimed by Wade and the item of $3,260 expended by Wade for removal of mud and dirt placed in Wade’s drainage ditch by the bridge contractor. He computed the items alleged in Pioneer’s cross-complaint as follows:

Section No. Item of Damage Amount
Cutting trench, and riprap excavation $ 5,096.00 9»
Clearing underbrush 908.48 r2
Completion of Wade’s work 16,986.16 O
Deterioration of Pioneer’s portion of job 17,445.42
10% of total overhead 9,905.91 ©
Deterioration of sand 11,065.91 «W
$61,407.48-
Less Wade’s credits 6,196.07
$55,211.41

Since Pioneer’s general contract with the State Highway Commission contained a $150-per-day liquidated damages provision if Pioneer failed to complete the work within 320 working days, Wade contends here that this provision was incorporated into his subcontract by section 3 above. Upon this premise he then contends, citing 22 Am. Jur. 2d Damages % 235 (1965), that a liquidated damages clause substitutes the amount agreed upon as liquidated damages for the actual damages, and that no sum larger or smaller than the amount stipulated in the contract can be awarded.

Based upon this contention, Wade contends that the foregoing items of damages (d), (e) and (f), as determined by the special master and awarded by the chancellor, are delay damages that Pioneer is not entitled to collect, since Wade’s performance did not result in liquidated damages being assessed against Pioneer.

Wade’s basic premise is not supported by section 3 of. the subcontract. The second sentence is cumulative and was apparently inserted to prevent any controversy on Pioneer’s right to recover delay assessments made against it by the Highway Department. See Kentucky Consumers Oil Co. v. General Bonded Warehouse Corp., 299 Ky. 161, 184 S. W. 2d 972 (1945). Therefore we affirm the chancellor as to items (d), (e) and .(f) in the master’s report.

II

With respect to item (b), appellant makes the same contention on delay that is set forth above regarding items (d), (e) and (f). We find this contention without merit for the reasons there stated.

In addition appellant argues that item (b), in the amount of $908.48 for clearing underbrush, comes within section 102 of the Highway Commission specifications. Section 102 is applicable only to clearing the right-of-way of trees and is a matter that is required to be completed before the excavation is undertaken. The proof shows that item (b), $908.48, covered work done by Pioneer in Wade’s absence to clear the right-of-way of weeds and other undergrowth. Therefore we hold that the chancellor properly allowed item (b), in the amount of $908.48 for clearing underbrush, under section 103.5 of the specifications.

Ill

Under item (a) of the damages the court allowed, in toto, the sum of $5,096 for equipment rental in cutting trench to grade, setting trench bottom, and excavation for structural riprap for the period from August 22, 1961 through August 31, 1961. In neither pleadings nor testimony are the equipment rental and labor broken down among these three items. All of Pioneer’s expenses on the three items are listed without allocation.

Appellant contends that where there is evidence as to damage from various causes, a portion of which Wade could not be held responsible for, and no evidence on pro-ration -of the damage resulting from the separate causes, then the proof is too uncertain to permit the allocation to Pioneer of part or all of the proved damages. 25 C. J. S. Damages § 28 (1966).

Appellee agrees with appellant’s theory of the .law but contends that in this instance the theory is not applicable because the excavation for structural riprap was an item to be paid for under item 103.5 of the specifications. Item 103.5 provides as follows:.

“103.5 Basis of Payment. The yardage of ‘Roadway Excavation’ measured as provided above, shall he paid for at the contract unit price per cubic yard bid for ‘Solid Rock Excavation’, ‘Common Excavation’ or .‘Unclassified Excavation’, as the case may be, which price shall be: full compensation for all light clearing and light grubbing; for all excavation; for all drilling and blasting; for formation of embankment; for all compaction where Special Compaction of Earthwork (Section 107) is not specified as a pay item; for all watering and aerating of soil; for trimming of slopes; for disposal of surplus material; for all hauling within the free haul limits; for preparation and completion of subgrades and shoulders of roadway; for final clearing up of the right-of-way; and for all labor, tools, equipment and incidentals necessary to complete the work.” (Emphasis supplied.)

Appellant, on the other hand, contends that the structural riprap is an item to be paid for under “rip-rap.” Section 909.5 of the general contract provides as follows:

“909.5 Basis of Payment. Riprap placed and accepted and measured as provided above, shall be paid for at the contract unit price per cubic yard bid for ‘ Riprap, ’ which price shall be full compensation for furnishing and hauling all material, for all quarrying involved, for necessary excavation and back fill, and for all labor, equipment, tools and incidentals necessary to complete the work.” (Emphasis supplied.)

We agree with appellant that the excavation for structural riprap is an item to be paid for under section 909.5. (We are led to this because common excavation and riprap excavation would not necessarily carry the same price, and section 909.5 specifically points out that the payment for riprap includes the payment for necessary excavation and backfill in connection therewith. Therefore we hold that the chancellor improperly allowed the sum of $5,096 under item (a) of the damages as against appellant.

IV

Included within the $16,986.16 allowed under item (c) is $6,172.50 paid to Harvey Durham for completing a portion of Wade’s subcontract. In this connection Durham testified that as part of his work in finishing Wade’s subcontract he also finished the upgrade portion of the embankment for Pioneer. Pioneer readily concedes that the upgraded portion of the embankment was its responsibility and not Wade’s. Since no allocation of charges was made by Durham between work done for Wade and work done in performing Pioneer’s portion of the upgraded embankment, we hold that the trial court erred in allowing the item of $6,172.50.

Therefore, we reduce item (c) of the damages allowable to Pioneer to the amount of $10,813.66.

V

On the $3,260 Wade expended to clear the bridge contractor’s waste material from the right-of-way, the only basis shown for disallowing this item is the master’s finding that if Wade expended the money therefor his cause of action would be against the bridge subcontractor and not Pioneer. All the evidence shows that Wade did spend $3,260 to remove the waste material from the ditches in addition to the yardage' he moved under his subcontract. It appears to us that such removal would have been necessary in the performance of Wade’s contract and that as between Wade and Pioneer, Wade was entitled to charge the cost thereof against Pioneer.

Therefore, we hold that Wade is entitled to an additional credit of $3,260.

YI

Wade argues that the court erred in determining that he breached his contract. As we view the facts it is definitely established that Wade did not completely perform his contract, and that the work he did was not done promptly within the terms of the contract. It is undisputed that Wade went out of business, having sold his equipment in 1962 before the job was finished.

Therefore, we conclude that the chancellor properly ruled in favor of Pioneer on this issue.

Wade contends that he was entitled to the difference between the actual quantities moved and the estimated quantities contained in his contract. This contention is without merit, for section 2 of the contract clearly provides for payment on a unit price rather than a total consideration.

      The figures given under approximate quantities and the extended total price are approximate ones and represent all of the described items between station 350/00 to station 464/00 on the above described general contract, and is exclusive of all upgraded material.


text:
    Elaine Davis WILKINS v. Bobby Gene DAVIS et al
    5-4485
    424 S. W. 2d 530
    Opinion delivered March 4, 1968

      Bart Mullís, for appellant.

      Wilton Steed, for appellees.
   Conley Byrd, Justice.

Blaine Davis Wilkins appeals from the dismissal of her petition to change custody of her son from his paternal grandmother, Martha Davis. In 1962, she filed her complaint for divorce from appellee Bobby Gene Davis. The chancellor, after hearing a number of witnesses for both parties, granted Davis a divorce on his cross-eoimplaint and awarded custody of their year-old son to his mother, Martha Davis, After appellant remarried, she sought change of custody. On February 4, 1963, after a hearing, the court in' effect denied the petition by continuing the matter for six months. No further action was taken on that petition. The testimony of the first two hearings is not in the record.

In 1966, Mrs. Wilkins filed the petition here appealed from, in which Martha Davis, the grandmother, was named a party defendant. After hearing the testimony of the parties and their witnesses, the court observed that there was no evidence of any change of circumstances, and entered its decree dismissing her petition.

For reversal, Mrs. Wilkins urges that the trial court erred in refusing to change the custody of the minor child to her, the natural mother. Without the transcripts of the 1962 divorce hearing, at which the chancellor refused to give custody of the baby to either parent and awarded it to Mrs. Martha Davis, and the 1963 custody hearing resulting in the court order continuing the matter for six months, we have no inkling of the evidence that prompted the chancellor’s original custody order. However, these were final orders from which no appeals were taken. The general rule in this jurisdiction relative to change of custody is that there must be proof of change of circumstances. Appellant demonstrated that she is making a good home for her husband and two children, but there is no evidence in the record tliat this was a change in circumstances from evidence adduced at the prior hearings, or that the welfare of the child would best be served by a change in custody from the stable home of Mrs. Davis where he has remained for a number of years. Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47 (1921). Under this state of the record, we cannot say the chancellor erred in refusing to change custody.

Appellant next urges that the court erred in refusing to make specific order for overnight and weekend visitation of the boy with his mother. The court order simply stated that “custody should remain vested in Martha Davis subject to the right of reasonable visitations of Elaine Davis Wilkins and her husband, and Bobby Gene Davis and his wife.” The court’s oral findings obviously contemplate overnight and longer visits with his parents, “to be controlled by the way the child develops.” The chancellor, of course, has continuing,jurisdiction to make such further orders as may be needed. However, from a review of the testimony it certainly appears that such visitation can be handled among the parties on a workable, reasonable basis, in a climate of cooperation, without necessity for further court order.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Carl WIDMER v. R. G. WOOD
    5-4445
    425 S. W. 2d 514
    Opinion delivered March 11, 1968
    [Rehearing denied April 15, 1968.]

      Carl Widmer, pro se.

      Hardin, Barton, Hardin & Jesson, for appellee.
   Carleton Harris, Chief Justice.

R. G. Wood, appel-lee herein, filed suit against Carl Widmer, appellant herein, seeking judgment for the recovery of an abstract of title. Appellant entered a special appearance for the purpose of quashing summons, and setting aside the purported service. This motion was denied on November 17, 1966, and a motion was then filed to vacate this order of the 17th. The motion to vacate was likewise denied by the trial court on December 21, 1966. Thereafter appellant filed an answer and submitted requests for admission of facts to appellee. With reference to the last, Wood filed a motion to quash. On April 28, 1967, appellant filed a motion for summary judgment of dismissal, together with his own affidavit in support of the motion, and a response was filed by appellee on May 12. On that date, the trial, without jury, was held and, after hearing testimony, the court directed that the abstract of title be returned to appellee, or, if same was lost, appellee should have judgment in the amount of $400.00 as damages. From the judgment, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in not granting the motion to abate the complaint; to quash summons, and set aside the purported service, and it is then contended that the court erred in not granting appellant’s motion for summary judgment of dismissal.

We find no merit in the first point. Widmer’s contention is based on the allegation that the summons served upon him directs that he answer within twenty days after service, whereas the statute, Ark. Stat. Ann. § 27-1135 (Repl. 1962) provides twenty-one days in which to answer or plead. Appellant has no cause to complain, for his first pleading (special appearance and motion to abate) was filed sixteen days after being served; in other words, Widmer was not de-peived or misled in any way to his detriment, whatever the status of the service had upon him. As pointed out in 72 C. J. iS. Process § 14, page 1009, an error in stating the time at which process is returnable is not fatal where a defendant was not misled to his detriment or prejudice.

As to his second point, relating to the summary judgment, Widmer relies in large measure upon the fact that he served sixteen requests for admission of facts upon appellee, which were never answered. However, appellee did file a.“motion to quash,” stating that same were irrelevant and otherwise improper. We held in Widmer v. Wood, 243 Ark. 617, 421 S. W. 2d 872, that a similar motion by tbe appellee constituted written objections. Appellant further points out that the statute provides that a notice of hearing on objections shall.be given at the earliest practicable time, and that no such notice was given by appellee. In Widmer v. Wood, 243 Ark. 457 (the first Widmer-Wood case to reach this court), the same argument was presented. We held it to be without merit, stating:

“ ***That the objections did not include a notice for a hearing thereon was not, in our judgment, a defect so fatal as to. result in the defendants’ admission of the truth of the requests.”

Appellant also asserts that the affidavit he filed, along with his motion for summary judgment, was sufficient within itself to supply the facts essential to justify the granting of his motion for summary judgment. We do not agree, and in fact appellant’s statements on the day of trial are contrary to this assertion. Let it be borne in mind that the only matter involved in this suit is whether Wood is entitled to the abstract of title; Wid-mer’s affidavit relates to his contention that Wood breached the contract for the sale of the land. In determining the issues that would be presented to the court, the judge asked appellant if he had any statement to mqke. Widmer replied:

“I’ve read this complaint, I’ve read the answer and I’ve read the exhibits attached to it and no where do I find anywhere a mention of an abstract or conditions upon which it was to be turned over to Mr. Widmer or returned by Mr. Widmer, or kept by Mr. Widmer. There is nothing in here that shows a/nd the court’s got to have proof this morning as to the agreement regarding the abstract transaction. [Emphasis supplied.] Now, of course, it would depend on, if there hadn’t been a default there wouldn’t have been any law suit, hut regardless of who’s fault it is, I am unable at this time to see where that question of fault in not carrying it out has anything to do with the agreement to the abstract. That’s a separate agreement, and I’m interested in hearing only what the agreement is with respect to this abstract, not going into the long winded business here to determine who’s fault it is for breaching this contract.”

The court then proceeded to hear proof, and three witnesses testified, at the conclusion of which the court rendered its judgment in favor of appellee.

Affirmed.

       This is the third lawsuit between Widmer and Wood to reach this court, and in the second case we pointed out that nearly all of the requests for admissions were similar to those set forth in the first case. Here too, most are substantially the same.


author: George Rose Smith, Justice.

text:
    L. O. MAKIN v. Ethel Adina MAKIN
    5-4495
    424 S. W. 2d 875
    Opinion delivered March 11, 1968

      Curtis E. Richard, for appellant.

      Hall & Tucker and John F. Lovell Jr., for appellee.
   George Rose Smith, Justice.

In 1965 the appellee obtained a divorce from the appellant. The decree awarded custody of the couple’s four children to the ap-pellee and directed the appellant to support the children by making weekly payments of $12.50 for each child during its minority.

In 1967 the appellant, upon his own initiative, began paying only half the amount fixed by the decree. Jn response to a citation requiring him to show cause why he should not be punished for contempt, the appellant filed a petition denying that he was the father of the two younger children and asking that the original decree be modified to relieve him from the duty of supporting those two children. This appeal is from an order which in effect sustained a demurrer to that petition, for its failure to state a cause of action, and dismissed it.

The court was right. The petition for a modification of the decree after the expiration of the term was based upon the wife’s asserted fraud on the court. Ark. Stat. Ann. § 29-506 (4) (Repl. 1962). The petition stated that more than a year before the birth of the third child the husband underwent an operation for sterilization. Owing to the subsequent birth of two children he believed at first that the operation had failed. Shortly before filing his petition for modification of the decree he assertedly learned that the operation had really been successful, so that he could not have been the father of the two younger children. For that reason he asked to be relieved of their support.

The petition was demurrable. Actionable fraud on the court, under the statute, must relate to some extrinsic matter and must be something more than false or fraudulent acts or testimony relating to the original cause of action, the truth of which was or might have been in issue.

Several decisions on the point were reviewed in Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234 (1950), a case decidedly similar to this one. There the divorce decree directed the husband to support a child whom the couple had adopted. The details of obtaining the adoption order had been left to the wife. Later on the husband sought a modification of the support order, asserting a fraud on the court in that the adoption proceeding was void. The husband accordingly alleged that the child was not his either by blood or by adoption, so that he should be exempt from the burden of its support. We rejected that contention, holding that the petition for modification of the support order did not assert an actionable extrinsic fraud on the court. The principle of that decision governs the case at bar.

Affirmed.