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.1 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 $3,750.00.2 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,3 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 882.4 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).5
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. 6
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.