68 Ark. 269 | Ark. | 1900
(after stating the facts.) Was the order of the county court void by reason of a failure to give notice as required by law? It is contended by the appellee that the order is a nullity because the sheriff’s return shows a failure to comply with section 4356 of Manfield’s Digest, which was in force when the order was made. That statute prescribes that “when a legal publication of any character is required by existing or future laws * * * . tobe made by advertisement in a newspaper printed in this state, it shall be published in some daily or weekly newspaper prmted in the county where the suit or proceeding is pending, or where the * * * subject of the proceeding or publication is situated. Provided, there be any newspaper printed in the county having a Iona fide circulation therein, which shall have been regularly published in said county for the period of one month next before the date of the first publication of said advertisement.”
It will be observed that the affidavits of the editors attached to the sheriff’s return each fail to show that the respective newspapers had been regularly published in Carroll county for the period of one month next before the date of the first publication of said advertisement. Neither the return itself nor the recitals of the record of the county court of July 12, 1890, when the order of cancellation was made, show the newspapers had been regularly published in the county for the required time prior to the first publication. On this point the present case is ruled by the decisions of this court in Gibney v. Crawford, 51 Ark. 34, and Thompson v. Scanlan, 16 S. W. Rep. 197. But it is contended that, as the affidavits of the two editors show that each paper had a circulation in the county thirty days prior to the date of the first publication, and that the notice was published in the Progress beginning April 23, and ending July 5, and in the Echo, beginning May 10 and ending July 5, the return, construed with reference to the different parts of it, shows each paper was published more than thirty days prior to the first day of publication. Non sequitur. The statute requires the notice to be published in a newspaper printed in the county, if there be one, “having a bona fide circulation therein, which shall have been regularly published in said county for one month next before the date of the first publication.” Obviously, something more is required than that the paper shall have had a circulation in the county for one month prior to the date of the first publication. It must have been printed or published in the county for that length of time before the first publication of the notice. Now, a newspaper may have a bona fide circulation in a county, and yet not be published therein at all. For we think the word “published,” as used in the statute, is synonymous with the word “printed.” Therefore we cannot see that, because it may have been shown that these papers had a bona fide circulation in the county for thirty days before the date of the first publication, it necessarily follows that they were published or printed in the county for that length of time before the date of the first publication. Nor will we, in this special statutory and summary proceeding, indulge in any astute refinements of construction in order to show that the statute in regard to jurisdiction has been complied with. Wn must adhere to the rule iu such cases that “everything will- be presumed to be without the jurisdiction which does not distinctly appear to be within it,” and insist upon a strict construction and compliance with the terms, of the statute.
We deem it unnecessary to discuss the pleas of res judicata and the statute of limitations. We have carefully considered same, and are of the opinion that they are not well taken. It follows that the judgment of the county court cancelling the warrant in controversy was void, and the judgment of the circuit court in this case ordering a peremptory mandamus on the collector to receive the warrant was correct, and it.is affirmed.