| Ark. | Oct 22, 1906
(after stating the facts.) This is an appeal by H. P. Gorman, administrator in succession and the heirs of Mary A. Cole, from a judgment of the chancery court enjoining them from enforcing a judgment of the circuit court which the administrator had recovered against E. Bonner and W. H. Coffey, bondsmen of L. P. Featherston, the first administrator of that estate.
The chancellor found that in the final settlement which the probate court made of the accounts of L. P. Featherston as such administrator the probate court charged him with $1,000 as the proceeds of the sale of the residence property of Mrs. Cole, when the fact was that Featherston did not sell such property as administrator or under an order of the probate court, but sold it as the agent of the heirs of that estate who were the owners of it. The chancellor found that this judgment of the probate court charging Featherston with the proceeds of such sale was there-, fore void and in law fraudulent as to the bondsmen of Featherston. But it does not follow, because the judgment in the circuit court was based on a void or fraudulent judgment of the probate court, that it is also either void or fraudulent. When these parties were sued in the circuit court, they should have set up any defense they had against such action, whether the same was legal or equitable. If the judgment of the probate court was fraudulent or void, that could have been alleged.
A defendant can not, under the Code system of procedure, let judgment go against him at law upon a legal liability, and then enjoin the judgment in equity upon equitable grounds which were known before the judgment at law. The effect of the Code procedure has modified,, and to a large extent rendered obsolete, the ancient jurisdiction of equity over judgments at law. The rule now is that parties must litigate the whole controversy in one action, and a defendant who has an equitable defense to an action at law is not now without a remedy against such action, for he can interpose such defense by answer or counterclaim, and, if necessary, have the case transferred to the chancery court. Kirby’s Digest, § 6098. If he fails to do this, and allows judgment at law to go against him, he may find that his defenses have been cut off by such judgment, and that he is without a remedy, either in law or equity. Reeve v. Jackson, 46 Ark. 272" date_filed="1885-11-15" court="Ark." case_name="Reeve v. Jackson">46 Ark. 272; Ward v. Derrick, 57 Ark. 500" date_filed="1893-04-08" court="Ark." case_name="Ward v. Derrick">57 Ark. 500; Moore v. McCloy, 70 Ark. 505" date_filed="1902-06-21" court="Ark." case_name="Moore v. McCloy">70 Ark. 505; Daniel v. Garner, 71 Ark. 484" date_filed="1903-10-10" court="Ark." case_name="Daniel v. Garner">71 Ark. 484.
It is true that Bonner, the plaintiff in this action to enjoin the judgment at law against him, did undertake to set up the same matters on which he bases his right to relief here as a defense to the legal action. He undertook to show that the probate court had improperly charged Featherston as administrator $1,000 as proceeds of land which he did not sell as administrator, but there was no allegation in the answer that Featherston did not have due notice of this proceeding in the probate court. The judgment of the probate court recited that he appeared by his attorney, while the answer of Bonner simply alleged that neither he nor his bondsmen were present at the time the probate court made the settlement. This did not show that he was not duly ■served with notice, or that the recital that he appeared by attorney was not true. If he appeared by attorney, he had a .plain remedy by appeal, and on that or some other ground a demurrer was sustained to the answer and counterclaim of the sureties alleging that the judgment of the probate court was void as to them. They pleaded no further, and final judgment went against them at law.
Counsel for appellants have labored to show that the judgment of the probate court was substantially correct, by reason of the fact that the court, while it made improper charge against the administrator, also allowed him improper credits. But that is now immaterial, for it was settled by the judgment of the circuit court which was based-on this order of the probate court. That judgment at law was rendered by a court of competent jurisdiction against parties who had been duly summoned and who appeared, and made defense. If there were errors in that proceeding, a court of equity has no power to correct them, for such courts do not sit as courts of review upon the proceedings of the courts of common law. Reeve v. Jackson, 46 Ark. 272.
It is not alleged or shown that there was any fraud in the procurement of the judgment at law, and we see no valid reason why it should be enjoined. The judgment of the chancery court to that effect will be reversed, with an order entered to dismiss the complaint for want of equity.