Johnson v. Hunter

Citations

• 147 F. 133
• 77 C.C.A. 359
• 1906 U.S. App. LEXIS 4199

Syllabus

<p>1. Process — Constructive Service — Affidavit for — Arkansas Special Stat- . UTE.</p> <p>Under the Arkansas Special Statute (Laws 1893, pp. 24, 119; Laws 1895, p. 88) for enforcing the payment of levee taxes upon lands in the St. Francis levee district by suits in the chancery courts, which provides that “notice of the pendency of such suit shall be given as against nonresidents of the county * * * by publication,” but “actual service of summons shall be had where the defendant is in the county or where there is an occupant upon the land,” and under section 5679, Sand. & H. Dig., which the act makes applicable to such -suits, an affidavit filed in the suit and alleging that a defendant, proceeded against as a known owner, is a nonresident of the county and is absent therefrom, and that there is not an occupant upon his land, is a prerequisite to service by publication against him, and is strictly jurisdictional in character.</p> <p>2. Same — Affidavit Must State Essential Facts, or Publication Will be Without Authority.</p> <p>An affidavit for publication which is not merely informal, but entirely fails to state some of the facts made essential by statute, will not authorize service by publication.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Process, §§ 114, 115.]</p> <p>3¡ Judgment — Jurisdiction—Presumptions—Coleatebal Attack.</p> <p>The presumptions which the law implies in support of the judgments of .superior courts of general jurisdiction only arise with respect to jurisdictional facts, concerning which the record is silent, and when it discloses the evidence upon which service by publication whs had, and this was ineffectual for the purpose, it will not be presumed that other or different evidence was presented, but the judgment will be void and open to collateral attack.</p> <p>(Syllabus by the Oourt.)</p>