Cockrill, C. T. 1. vacating judgment for JudThis is a proceeding at law, under section 3909 of Mansfield’s Digest, to set aside a judgment rendered by the court at a previous term. The contention was that there was no service of process upon the judgment defendant, and no return of service by the sheriff or other officer, but that the judgment had been rendered upon the representation of the plaintiff’s attorney that there was a proper return of service. The complaint alleged a partial defense to the cause of action upon which the challenged judgment was based. The court disregarded the latter issue, and, after a trial directed by it upon the first issue only, annulled the judgment of recovery.
If the judgment was in fact obtained by the plaintiff’s attorney, upon the representation that there was a return of service of process, when in fact there had been no service and no return of service by the officer, then the judgment was obtained through “fraud practiced by the successful party,” within the meaning of the fourth subdivision of section 3909 sitpra, even though the attorney acted under a misapprehension of the true state of facts.
2. Defense to '■fraudulent judgBut section 3912 of Mansfield’s Digest, which is a part of the same chapter of the civil code of procedure from which section 3909 is taken, provides that such a judgment shall not be vacated “until it is adjudged that there is a valid defense to the action in which the judgment was rendered.” The court erred in disregarding this provision of the statute. Boyd v. Roane, 49 Ark., 397, 417. For this error the judgment must be reversed, and the cause remanded for a new trial.
When the complaint in this cause was filed, the judge in vacation enjoined the execution of process upon the judgment until the cause could be heard, under the authority of Shaul v. Duprey, 48 Ark., 331. The temporary restraining order will be continued in force subject to the order of the circuit court.
It is so ordered.