122 Ark. 67 | Ark. | 1916
(after stating the facts).. Though it is not :so denominated, the present proceeding was evidently instituted under section 4431 of Kirby’s Digest to vacate a decree rendered at a former term of the chancery court on the ground that it was entered without notice to him. See Holman v. Lowrance, 102 Ark. 252; Foohs v. Bilby, 95 Ark. 302.
(1-2) A motion under the statute to vacate or set aside ¡a judgment rendered at a former term is obviously a direct attack on the judgment. The effect on the present proceeding is to attack the judgment against W. H. Hafl in favor of C. Floyd Huff rendered at a former term of the chancery court by setting it -aside on the ground that no service of summons was had on the said W. H. Hall and that his appearance to the suit had not been entered. A direct attack on the judgment or decree has been defined to be any proceeding which is instituted for the express purpose of annulling, vacating or modifying it.
•On the part of W. H. Hall it is contended that the decree in the former suit against him in favor of Huff was entered without any service upon him or any notice on his part that he had been made a party to the suit. The chancellor found against him on this issue and the correctness of his decision in this respect we consider to Ibe the most serious question in the case.
(3) After a careful consideration of the whole record in this case we have reached the conclusion that the finding of the chancellor is against the preponderance of the evidence. In arriving at that conclusion we do not wish to be understood -as casting'any reflections upon the integrity or good faith of Huff or his attorney. We simply mean to ¡say that when the record is considered in all its aspects and bearings, we think ¡the preponderance of the evidence shows that they were mistaken in saying that Judge Wood entered the appearance of W. H. Hall. It ¡appears that Hall had several actions pending against him in regard to property in Hot ¡Springs and that Judge Wood was attorney for him in all these cases; and it is likely that they have confused the appearance of Hall entered in .some of these cases with the present case. Though they have testified positively that Judge Wood entered the appearance of W. H. Hall, they have stated that they did not remember what chancellor was on the bench at the time or what disposition, if 'any, was made of Judge Wood’s motion to strike their amendment to the complaint from the files of the court.
Judge Wood died in June, 1913, and his motion to strike the .amendment to the complaint from the files was filed on March 17, 1913. Judge Henderson must have occupied the bench at that time. He testified that counsel for both parties insisted that he was qualified to try the ease and that he first considered ,all the testimony and prepared an opinion in the ease 'brat afterwards concluded that he was disqualified and certified his disqualification. The- record shows that he certified his disqualification after Judge Wood died. It also shows that he certified his disqualification in the case of Huff v. J. H. Hall. W. H. Hall was not mentioned. This was not long after it is claimed the appearance of W. H. Hall had been entered by Judge Wood.
According to the testimony of 'Chancellor Henderson he had no recollection of Judge Wood having entered W. H. Hall’s appearance 'and he stated that it was his settled practice to make a notation on his docket when the appearance of a client was .entered by an attorney. The record shows that his docket does not show that the appearance of W. H. Hall was entered to the action.
'Scott Wood, who was the partner and son of Judge Wood during the whole proceeding, prayed an appeal to the 'Supreme Court for J. H. Hall but did not ask one for W. H. Hall. The defense o.f .the two Halls to the action would have been practically the same.
The record .also shows that W. H. Hall was much interested in the case and assisted his father in the management thereof throughout the whole proceeding.
These two last mentioned facts, when considered together, are convincing testimony that neither Scott Wood nor W. H. Hall knew that the latter had been made a party to the suit .and that judgment had been rendered against W. H. Hall.
As above indicated, we think the state of the record turns the scale in favor of Hall and are of the opinion that a preponderance of the evidence sustains his contention. Both Huff and his attorney were lawyers and are members of the bar of this court as well as of (all the inferior courts in this State. As sneh they no doubt participate in the trial of many oases during the course of the year and have confused another appearance in some other case with the facts testified to in this case.
This brings ns to the question of whether or not the defendant Hall has -a meritorious defense to the action in which the judgment against him was obtained. On this question but little need be said. The-issues against the two defendants were the same. What would constitute a defense for J. H. Hall would constitute a defense for W. H. Hall -also. The transcript in the original suit was introduced in evidence in the present proceeding and this court rendered a decision reversing the decree against J. H. Hall and ordering the cause remanded with directions to dismiss the complaint 'against him for want of equity. See Hall v. Huff, 114 Ark. 206.
The case will, therefore, be remanded with directions to enter a decree in favor of the appellant.
