157 Ark. 86 | Ark. | 1923
(after stating the facts). The practice in this State is that, where a defendant who has been constructively served seeks a new trial under the statute, he cannot have the judgment or decree vacated on the motion. The judgment or decree remains until the case is retried, to be then confirmed, modified, or set aside. Gleason v. Boone, 123 Ark. 523.
In the present case Ella Moreland showed no ground for setting aside the mortgage foreclosure proceedings. The proceedings themselves were regular in all respects. There was a valid mortgage and a subsisting debt due, which it was given to secure.
The court found the amount due under the mortgage, and ordered a sale of the land for the satisfaction of the debt secured by the mortgage. A commissioner was appointed to make the sale, and the land was duly sold by him. The sale was made in due time, 'and was also reported to the chancery court and 'approved and confirmed by the court. The court then directed the commissioner to execute a deed to the purchaser to the land, which was done. No showing was made by Ella Moreland to have these procedings set aside. She does not show that the foreclosure proceedings were erroneous in any respect. So far as the record discloses, -the mortgage was a valid one, and was executed by the father of Ella Moreland in his lifetime. He owned the land and owed the debt for which he mortgaged the land. Therefore the court was right in denying the- petition of Ella Moreland and dismissing it for want of equity. It did not make any difference whatever whether she was the sole heir of W. H. Larkins, deceased, or not. She would- have just as much right in the one case as the other to have the case retried; but in'either event she must show some meritorious defense to the action, and this she has failed to do.
It follows that the decree will be affirmed.