208 S.W.2d 990 | Ark. | 1948
Appellants ask us to reverse two orders of the chancery court — one order refusing to set aside a decree rendered by a special chancellor and the other refusing to rehear the case.
There is no dispute as to the facts.
Byers and his wife, appellees, brought suit in circuit court against E. E. Harris and his wife who are the appellants, for possession of certain lands. Byers and wife prevailed on trial before a special judge of the chancery court, to which the case had been transferred. Harris and wife appealed to this court, asserting that the decree was not responsive to the evidence. The decree was affirmed by us on November 18, 1946. See Harris v. Byers,
On petition for rehearing filed by appellants in this court on December 5, 1946, appellants, for the first time, raised the question of the lack of authority on the part of the special chancellor. This petition was overruled by us.
On November 30, 1946, appellants filed motion in the chancery court asserting that Hon. E. L. Westbrooke, the *1027 special chancellor who heard and decided the cause, was not authorized to render the decree, which was dated November 30, 1945, though not entered on the record until in March, 1946. Afterwards motion, requesting that the case be submitted to and tried by the regular chancellor, was filed by appellants. In this motion they alleged that Hon. Francis Cherry, the regular chancellor, who had been away in military service, returned and resumed his duties as such chancellor on December 1, 1945. The lower court refused to set aside the decree of the special chancellor and refused to permit a retrial.
Appellants cite our opinion in the case of Cates v. Wunderlich,
In the early case of Sweeptzer v. Gaines,
We said in the case of Strahan v. The Atlanta National Bank of Atlanta, Texas,
In the case at bar no objection whatever to the authority of the special chancellor was made in the lower court when the suit was tried and the decree rendered, nor did appellants make any objection in this court to the authority of Judge Westbrooke until after the cause had been heard by us de novo and the decree rendered by Judge Westbrooke had been affirmed by us on its merits. We refused to sustain appellants objection to Judge Westbrooke's authority raised in their petition for rehearing.
It was certainly too late, after the case had been thus disposed of in the lower court and in this court, for appellants to renew their challenge to Judge Westbrooke's authority.
The decree of the lower court is affirmed.