123 Ark. 523 | Ark. | 1916
The plaintiff, Mrs. Poynter, instituted an action in the chancery court of Arkansas County to foreclose a mortgage on real estate executed by L. J. Miller and his wife, Irene Miller. The amount of the original mortgagé debt was $400, and with interest accrued up to the date of the decree amounted to $526.91. The action was against L. J. Miller and his wife and certain junior lienors, and against appellant, John C. Gleason, who was a subsequent purchaser from Miller. Appellant was a nonresident of the State and was duly summoned by publication of a warning order, an affidavit and proof of his nonresidency having been filed in the action. The other defendants were personally served with summons. The plaintiff complied with the statute concerning judgments and decrees against nonresident defendants and a final decree was entered in the cause foreclosing the mortgage and directing sale of the land by a commissioner of the court. The sale was subsequently made by the commissioner, appellee John H. Boone being tbe highest bidder and becoming the. purchaser at the sale, and the report thereof was made at the September term, 1915, of the chancery court. At that term of the court, which was within twelve months'óf the date of the original decree, and before the confirmation of the sale, appellant appeared by attorney and filed a petition to vacate the original decree and for retrial of the action. The petition contained no statement of facts tending to show a defense to the original action, and the court, after hearing the petition, refused to vacate the original decree. It does not appear from the record that the motion for a retrial of the cause was heard by the eourt.
At the samé time appellant filed exceptions to the commissioner’s report of sale on the ground that no notice of the sale was served on .him, and that the land was sold for an inadequate price. He tendered in court the amount of appellee’s bid and asked that appellee be required to accept the same in redemption of the lands from the sale. The court heard the exceptions upon affidavits concerning the market value of the land and entered a decree overruling the exceptions and confirming the sale. An appeal has been duly prosecuted to this court.
“All advertisements and orders of publication required by law or order of any court, or in conformity with any deed of trust or real estate mortgage, or chattel mortgage, where the amount therein received exceeds the sum of three hundred and fifty dollars, or power of attorney or administrators’ notices to be made, shall be published in some newspaper published and having a bona fide circulation in the county in which the proceedings are had, to which such advertisement or order of publication shall pertain; if there be no newspaper published in such county, then iby posting five written or printed notices in five of the most public places in such county; provided, the provisions of this act shall not apply to sales under executions issued by justice .of the peace; and provided further, that as to amounts under three hundred and fifty dollars notices, written or printed, may be posted in five conspicuous places in the county, and notice shall be served in all cases upon the debtor as summons' are now served.” Kirby’s Digest, section 4923.
That statute has never been construed by this court except that in Carpenter v. Zarbuck, 74 Ark. 474, we said that if it applied at all to sales of land under decrees of foreclosure, the failure to comply with the statute was only an irregularity which could not be taken advantage of after confirmation. It will be observed that the main body of the statute relates to publication of notices in matters wherein amounts are involved in excess of the sum .of three hundred and fifty dollars, and then follows a proviso concerning sales under execution issued by justices 'of the peace, and then the final proviso which it is evident refers only to proceedings wherein amounts under three hundred and fifty dollars are involved.
"We do not decide in the present case whether the statute has any application at all to sales of land under foreclosure decrees of court, but it is evident that the last provision has no application to any publication except in matters involving .amounts less than three hundred and fifty dollars. It was the purpose of the Legislature to exclude those matters from the operation of the first part of the statute and to permit notices to be given by posting in five conspicuous places in the county, and by service “upon the debtor as summons are now served.”
The statute reads that “in all cases” this service must be had, but the language as used evidently referred only to those cases in which the amount involved was under three hundred and fifty dollars, and has no application to cases involving more than that amount.
Decree affirmed.