118 Ark. 449 | Ark. | 1915
(after stating the facts). The findings and decree of the court are correct.
It is true that the complaint alleges, “Fourth, that said judgment was procured by fraud committed by plaintiff upon this court and this plaintiff, wherein the said plaintiff .alleged in its complaint that the owner of staid lot was unknown. The plaintiff denies the 'allegation in the complaint that the owner of said lot was an unknown owner, and states that the plaintiff was the owner at said time and was well known to be the owner; that he was known to be the owner to B. L. Norris, who served the summons, and to the board of improvement,” etc. But these allegations were not sufficient to constitute a fraud practiced by the successful party in obtaining the judgment. The allegation in the complaint in the suit to condemn, that the owner was unknown, was sufficient to -give the court jurisdiction to proceed against the property. It was not a fraud on the court to make this .allegation although it was untrue, for the court had the power to inquire into its jurisdiction and to determine whether or not it was true. The recitals of the decree condemning the lot in controversy to be sold were, in effect, that the owners of the lots were designated as unknown and that they were unknown to the board of improvement. We must ¡presume, in the face of these allegations, that the court did make inquiry as to its jurisdiction to proceed against the property, and found that it ¡had jurisdiction. In other words, that the complaint alleged that the owners of the lots were unknown and that such was Itihe fact.
Another ground alleged for setting aside the decree was “that the complaint in the cause was not verified by the plaintiff nor its solicitor, ¡and that no proof was taken in said cause upon which a decree could be legally rendered, thereby committing a fraud.upon this court and against this plaintiff. ’ ’ But the improvement district statute -under which the land in Controversy was condemned does not require that the complaint be verifled, and in the absence of ¡such verification is not a' prerequisite to the court’s jurisdiction.
None of the allegations of the Complaint state facts sufficient to constitute a direct attack upon the judgment. We have no statute authorizing a judgment to be vacated or set aside upon such allegations as those contained in the complaint.
“Any proceeding provided by law for the purpose of avoiding or correcting a judgment, is a direct attack which will be successful upon showing the error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power.” Vanfleets Collateral Attack, p. 5, section 3.
Again: “A judgment or decree can not be impeached for fraudulent acts or testimony, the truth of which was or .might have been in issue in the proceedings which resulted in the judgment assailed, but must-be impeached by proof of a fraud practiced in the procurement of the judgment itself.”
In Pattison v. Smith, supra, it was alleged as one of the grounds for setting aside the decree of the chancery court that the same was obtained by fraud in that the decree was founded upon the nonpayment of levee taxes and that the same were not actually delinquent, 'but had been paid, and that this was procuring the judgment by fraud. Disposing of this allegation, the court 'said: “It was therefore, in effect, an impeachment of the decree relative to a question of fact upon which the' court 'had made a finding and not such an allegation of fraud practiced upon the court in the procurement of the decree for which the decree could be set aside.” Citing Pine Bluff v. Levi, 90 Ark. 166, where the court said: “But the fraud which entitles a party to impeach a judgment must be a fraud extrinsic of the matter tried in the cause. It must 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 tbe court which resulted in the' judgment that is thus assailed. It must be a fraud practiced upon the court in the procurement of the judgment.”
The language used in that case is germane to the issue raised by the allegation in the complaint under review to the effect, that the judgment was procured by fraud committed by the plaintiff in the suit for condemnation in alleging that the owner of the lot was an unknown owner, when in fact he was 'known by the plaintiff in that suit to be the owner. The language above quoted disposes of tbis issue.
Appellant alleges and contends that the sale was invalid bemuse there was no notice to the effect that ‘ ‘ only so much of the property shall be sold as will pay the assessment, costs and penalty ¡and no more.” Kirby’s Digest, section 5700. Also that the notice did not state the amount due against the lot, and that the sale was advertised to be held at the southeast door of the court house, when it in fact took effect in the circuit clerk’s office; and also that the sale was invalid because there was a collusion 'among the bidders to suppress competition in bidding; 'also that the commissioner’s deed wias void because of a defect in the (acknowledgment; also that the 'commissioner’s deed was void because the commissioner had removed beyond the jurisdiction of the ■court and the deed was therefore not executed and acknowledged by the proper party.
We find no element of estoppel in the fact that the ¡appellee Norris did not offer to pay the taxes after the sale of the land until the last day when he was authorized under the law to pay such taxes. Appellee was under no obligation to pay these taxes, although the purchaser of the land, until the period of redemption had expired and until after the deed was executed and delivered to him. Certainly no fraud was perpetrated upon the owner by his failure to offer to pay the same when he was not required under the law to do so, and was under no legal duty or obligation to appellant to advise him of hisi purchase of the land.
The decree of the chancery court is therefore affirmed.