138 Ark. 289 | Ark. | 1919
(after stating the facts). The decree of the chancellor was right; for the parties are concluded in the present case by the decree of the Madison Chancery Court rendered at its February, 1912, term in the case wherein Mary A. Wist was plaintiff and Frederick T. Hooper was defendant. In that case, the record shows that Mary A. Wist and Frederick T. Hooper each owned land in the northeast quarter of the northwest quarter, section 1, township 13 north, range 26 west, and the decree specifically fixed the boundary line between them. The chancery court in that case had jurisdiction of the subject-matter of the action and of the parties. The object of the suit was to confirm, the title of the plaintiff, Mary A. Wist, in the lands claimed by her. A settlement of the boundary lines between her and the defendant in the action was within the issues. It does not matter that the judgment in that case may have been wrong. It was conclusive between the parties until reversed on appeal or set aside in a direct proceeding brought in the same action for that purpose. It is true a default decree was taken in that case, but a judgment or decree by default is as conclusive as any other judgment or decree.
It is well settled in this State that in a collateral attack upon a judgment of a court of general jurisdiction every presumption will be indulged in favor of the jurisdiction of the court and the validity of the judgment or decree. Crittenden Lumber Co. v. McDougal, 101 Ark. 390; Clay v. Barnes, 121 Ark. 474, and Jones v. Ainell, 123 Ark. 532.
This brings us to a consideration of whether the present case is a direct or collateral attack on the former chancery decree. A direct attack on a judgment is usually defined as an attempt to reform or vacate it in a suit brought in the same action and in the same court for that purpose. On the other hand a collateral attack upon a judgment has been defined to mean any proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered, or by appeal, and except suits brought to obtain decrees declaring judgments to be void ab mitio. 15 R. C. L. 838, par. 311. This is the effect of our decisions in the cases above cited as well as numerous other decisions of the court.
In the present case the plaintiff brought suit to have his title quieted to certain lands specifically described in his complaint. It is true that when he comes to the lands in controversy, he does ask that the decree in the former chancery suit brought by Mary A. Wist to confirm her title to the same land in which he was made a party defendant, be reformed, but this does not prevent this being a collateral attack on the decree in that action.
In Cassady v. Norris, 118 Ark. 449, the court held that if an action or proceeding has an independent purpose and contemplates some other relief, although the overturning of a judgment may be important or even necessary to its success, then the attack upon the judgment is collateral.
In Vanfleet’s Collateral Attack on Judicial Proceedings, paragraph 3, the author says:
“A collateral attack on a judicial proceeding is an attempt to avoid, defeat or evade it, or to deny its force and effect in some manner not provided by law. As there are only two ways to attack a judicial proceeding, direct and collateral, it is obvious that this definition complements the one in the last section, and they are both self-evident. Any proceeding provided by law for the purpose of avoiding or correcting a judgment, is a direct attack which will be successful upon showing the error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power.”
In Black on Judgments (2 ed.), vol. 1, par. 252, the rule is stated as follows :
“We are next to inquire what constitutes a collateral attempt to impeach a judgment within the meaning of the rule prohibiting such endeavors. And here we shall find that the word “collateral” is always used as the antithesis of “direct” and it is therefore wide enough to embrace any independent proceeding. To constitute a direct attack upon a judgment, it is said, it is necessary that a proceeding be instituted for that very purpose. If an appeal is taken from a judgment, or a writ of error, or if a motion is made to vacate or set it aside on account of some alleged irregularity, the attack is obviously direct, the sole object of the proceeding being to deny and disprove the apparent validity of the judgment. But if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral and falls within the rule. Thus, whether a judgment is irregular or erroneous is not a legitimate inquiry in a suit brought for its enforcement.”
In the application of these principles to the facts of the present case, it is apparent that this is not an action to set aside the decree in which Mary A. Wist was the plaintiff and Frederick T. Hooper was the defendant, entered of record at the February, 1912, term of the Madison Chancery Court. The main object of the present suit is to quiet the title of Frederick T. Hooper to certain lands, and the reformation of the decree in the former suit is also asked.
Under the authorities cited above this action is a collateral attack upon the decree in the former case and the decree in that case must of necessity be conclusive of the rights of the parties. See Kalb v. German Savings & Loan, Society (Wash.), 87 Am. St. Rep. 757; Kizer v. Canfield (Wash.), 49 Pac. 1064, and Morrill v. Morrill (Ore.), 23 Am. St. Rep. 95.
The principle is stated in the last mentioned case as follows: “If she neglected or failed, without some reasonable excuse, to produce all of the evidence in her possession in that suit, it is now too late for her to be heard to complain. There must be an end to litigation, and where a party has an opportunity to present his defense and neglects to do so, the demands of the law require that he should take the consequences, when the judgment or decree is sought to be enforced against him in a collateral proceeding.”
The matter set up in the present action by the plaintiff was not made a ground of defense to the former suit between Mary A. Wist and himself and’having failed to set it up in that action the plaintiff can not be heard to urge it in a collateral attack on the decree in that suit.
It follows that the decree must be affirmed.
