56 S.W.2d 1032 | Ark. | 1933
This is an appeal from the action of the trial court vacating a judgment of that court made and entered on the 15th day of September, 1930, which was appealed to this court and affirmed.
In the court below the appellant filed a motion to dismiss the petition on the ground that the subject-matter involved had been adjudicated, and the plea of res judicata was interposed in said motion. This motion was overruled, and issue was joined. The court, having heard the evidence adduced, vacated its former judgment, and the appellant here urges the same grounds for reversal as those contained in his motion to dismiss.
The judgment sought to be vacated has been before this court on appeal and here affirmed. The appellant invokes the rule that matters involved and litigated in a former suit, or which might have been litigated therein, are res judicata, and cites a number of our cases in support of the rule. It is our opinion that the rule and the decisions have no application here, for the reason that this is a special statutory proceeding authorized by the first subdivision of 6290 of Crawford Moses' Digest and prosecuted under 1316 of the Digest, which section provides that, where grounds for new trial are discovered after the term at which the verdict was rendered, an application for vacating the judgment may be made by petition filed with the clerk on which a summons shall issue as on other complaints requiring the adverse party to appear and answer. By that section it is also provided that the case shall be summarily decided by the court upon evidence, either in form of depositions or the testimony of witnesses examined in the court.
It was alleged, and the court found, that the plaintiff (appellee) had discovered new evidence material to the issue in the former suit, and that, if the evidence was true, it constituted a valid defense. The court thereupon granted the prayer of the petition and vacated and set *933 aside the judgment and set down the case for trial. Subsequently, the case was again tried, and the verdict of the jury and judgment of the court were adverse to the appellant.
There appears to have been sufficient testimony to justify the action of the court in vacating the judgment and to sustain the verdict of the jury in the subsequent trial. In the matter of vacating judgments on the ground of newly-discovered evidence, a wide discretion is given the trial court, and its judgment should not be disturbed unless it is manifest that there has been an arbitrary abuse of that discretion. The right to have a judgment vacated on the ground of newly-discovered evidence, or for any other of the grounds mentioned in 6290, supra, is not affected by an appeal to this court or a reversal or affirmance. It is an independent action to be instituted and conducted as in ordinary actions at law, and is not affected by whatever might have been done with respect to the judgment sought to be vacated.
In the case of Foohs v. Bilby,
From the record before us, we are of the opinion that the action of the trial court in vacating the judgment was not an arbitrary exercise of his power, and, since on a new trial there was substantial evidence to warrant the verdict, the judgment will be affirmed.