88 S.W.2d 826 | Ark. | 1935
This is the fourth appearance of this case here. On the first appeal,
The judgment of dismissal was entered on April 4, 1933, and the motion to vacate was filed May 8, 1934, or more than one year thereafter. The judgment of dismissal therefore had become final and conclusive save that it might be vacated for one or more of the reasons stated in 6290 of Crawford Moses' Digest. The fifth subdivision of 6290 is the only provision that could possibly, under the most favorable view, have any a application to the facts alleged in appellants' motion to vacate. This subdivision provides: "For fraud practiced by the successful party in the obtaining of the judgment or order," such judgment or order may be vacated. We have always held that the fraud referred to in this subdivision was fraud practiced upon the court in the procurement of the judgment or order and not upon the party or parties to the litigation. See Holland v. Wait, ante p. 405, and cases there cited.
The only allegation of the motion to vacate which presents even a remote allegation of fraud is that the parties agreed that the pending case would not be tried until the appeal in the pending case in this court was determined. Accepting this allegation as true, it appears that this agreement ended on February 6, 1933, the date on which our opinion was handed down in said case or approximately two months before the order of dismissal *903
was entered. This length of time afforded appellants ample opportunity to take some affirmative steps looking to the final disposition of the cause on its merits. Appellants urge, however, that no notice was given them that application would be made for the dismissal of said cause on April 4, 1934. We know of no rule of law or statute, and none has been cited to us by counsel, which requires notice in advance of proceedings similar to these under consideration. It is fundamental that parties litigant must take notice of the convening of the court in which they have pending litigation. Papan v. Nahay,
For the reasons stated, the trial court was correct in dismissing appellant's motion to vacate, and the judgment must be affirmed.