43 Ark. 107 | Ark. | 1884
Hanna, in his bill for injunction, filed in 1880, alleged that Morrow had, in 1876, recovered a decree in Chancery against him for $222 and costs; that in 1877 an execution had been levied on one hundred and thirty acres of land, which constituted his homestead, and he had accordingly filed a schedule, claiming the land as exempt from execution and had procured a supersedeas to be issued; that afterwards Morrow had filed his petition to quash said supersedeas andj subject the land to the payment of his debt; that the said judgment debtor was duly summoned to answer this petition and bad applied to the clerk of the court for a sight of saidpetition^ but was informed that the-only suit pending against him in that court was a proceeding by sciere facias to revive said judgment; that he believed and relied on these representations of the clerk, in consequence of which he made no defence, and judgment by default, was rendered against him, and the sheriff1 is now-about to sell his lands; that the plaintiff is a married man and head of a family and has resided on the lands for two or three years next before the filing of his bill, and the lands are in the county and worth not exceeding $2,500; that he had filed a schedule of all his property and demanded a supersedeas, but the clerk had refused to issue it.
The bill further alleged that Hanna had a judgment against Morrow for $300, which he exhibited and offered to set off against the judgment sought to be enjoined.
To this bill a demurrer was sustained and the plaintiff declining to plead further was dismissed out of court.
Only two questions properly arise upon the record.
It was specified, as one of the causes of demurrer, that the bill showed no sufficient excuse, for not answering Morrow’s petition to quash the supersedeas granted by the clerk.
The plaintiff here was guilty of inexcusable neglect. Every suitor should personally attend to his case, or be represented by an attorney.
After Hanna had been duly served with process, he neglected to attend court, made no inquiry of the opposite party or his counsel, and did not examine the docket tor the ease, but suffered himself to be lulled into security by loose declarations of the clerk to the effect that no such suit was pending. No fault or fraud is attributed to the adverse litigant or his solicitor. And solemn judgments cannot be vacated where there is an utter absence of legal diligence. Freeman on Judgments, Sec. 115; Gardenhire v. Vinson, 39 Ark., 270.
These considerations relieve us of the necessity of. determining whether Hanna had any meritorious defence against Morrow’s petition to vacate the supersedeas theretofore issued, staying the sale of the lands. It appears from the bill that Hanna was not occupying these lands at the date of the rendition of the judgment, but that after the judgment lien had attached and before the levy of the execution, he had established his residence upon the lands, Whether a valid lien fixed upon land before it acquires the character of a homestead, can be displaced or impaired by a subsequent occupation of the land by the debtor as a homestead, is a point upon which the following authorities may be profitably consulted : Thompson on Homestcads and Exemptions, Sec. 317 and cases cited; Moore v. Granger, 30 Ark., 574; Patrick v. Baxter, 49 Id.; Constitution of 1874, Art. IX, Sec. 4; Tumlinson v. Swinney, 22 Ark., 400; Norris v. Kidd, 28 Id., 485.
Then to the bill, considered in its aspect of enforcing the plaintiff’s right to set off his judgment against Morrow’s judgment, there is an insuperable objection to relief. The plaintiff sued before a Justice of the Peace, since the adoption of the present Constitution, for $439, and recovered judgment for the full amount of his claim. He afterwards entered a remittitur for the $139 in excess of the magistrate’s jurisdiction. But his judgment was not a mere irregularity; it was a nullity, of no avail, or effect whatever, and incapable of being cured.
Decree affrmed.
