122 S.W.2d 953 | Ark. | 1938
This appeal comes from a decree foreclosing a deed of trust in the Nevada chancery court. On January 7, 1929, Wash Morgan, and Martha Morgan, his wife, executed a note in the sum of $2,000, due October 15, 1929, in favor of E. H. Alsobrook, as trustee for J. M. Stocks. On December 14, 1929, Wash Morgan died and suit was instituted on December 1, 1931, by J. M. Stocks and E. H. Weaver, as substituted trustee, against his widow and heirs at law, some of whom, including appellants herein, Ollie Morgan and Alvin Morgan, were minors. Service was duly had on all the defendants with the exception of Roy Morgan and his wife, Lessie Morgan, on December 8, 1931. On December 31st, a warning order was issued for Roy Morgan and his wife, Lessie Morgan. On January 9, 1932, the answer of appellants herein who were then minors, was filed by Thomas W. Blakely, as attorney for Martha Morgan, mother and statutory guardian of appellants. The case was heard by the lower court on March 8, 1932, approximately 60 days after the filing of the answer of the guardian, and a decree entered. Among other things, the decree recites that the cause was submitted and the decree rendered *370 "from the pleadings, process, returns, papers, note and deed of trust, and oral testimony taken before the court." It is further recited in the decree: "That after personal service of process on the said minor defendants herein, Elrey Morgan, Marjorie Lowe, Alvin Morgan, Ollie Morgan and Mary E. Morgan, the said Martha Morgan, guardian for the said minor defendants, filed, at a previous term of this court, on January 9, 1932, her answer herein, denying all the material allegations in the said complaint, and that all the other defendants have made default. . . ." The oral testimony is not in the record and has not been brought forward by a bill of exceptions. This appeal was taken August. 8, 1938, by the appellants under 2746 of Pope's Digest.
Appellant urges two grounds for reversal of the judgment of the lower court: (1) That the answer of the guardian was insufficient in that it did not deny the material allegations of the complaint. (2) That the judgment was premature because, under 1512 of Pope's Digest, it was taken less than 90 days after the issues were made up.
Considering these assignments in their order: First, we are asked to determine whether or not the answer of the guardian was sufficient. We hold that it was. The guardian in her answer specifically denies the execution of the note and deed of trust, that the deed of trust was acknowledged, denies that the rights of dower and homestead were released, denies that the deed of trust was recorded, denies that the trustee named in the deed of trust was dead, or that plaintiff was authorized to appoint another trustee, denies that default was made in the payment of the note or that plaintiff was entitled to a foreclosure or to a judgment in any amount or had paid the taxes for the year 1930.
The statute requires denial of every material allegation in the complaint which may be prejudicial to the defendant. This was the rule laid down by this court in Varner v. Rice,
Coming now to the second assignment, was the decree premature? We hold that it was not. The decree in this case is governed and controlled by 1512 of Pope's Digest, which is 1288 of Crawford Moses' Digest as amended by act 37 of the Acts of the General Assembly of 1929. As originally enacted and before the amendatory act 37 of 1929 was passed, this section did not permit the court or chancellor in vacation to set the action for trial on notice to opposing counsel or attorneys ad litem and to try the case if the court found that the proof had been completed at an earlier date. The cases cited by appellant, Sager v. American Investment Company,
According to the record before us, suit was filed December 1, 1931, service was duly had on all parties, on January 9, 1932, the answer of the guardian was filed and the case at issue. It was submitted on March 8, 1932, and the decree recites that the submission was, with other things, "on oral testimony taken at the hearing." There is no bill of exceptions before us. This oral testimony is not in the record. Approximately 60 days intervened between the filing of the guardian's answer and the trial of the case.
In a recent case before this court, Burks v. Cantley,
There is nothing in this record to negative the idea that the guardian waived further time. Certainly it does not affirmatively appear that there was no waiver of further time. In the absence of a showing to the contrary, this court must presume, on appeal, in favor of the validity of the finding and judgment of the trial court that every fact necessary to sustain the judgment was proved where evidence adduced at the proper time would justify the court's ruling.
In Sisk v. Becker Roofing Company,
To the same effect see St. L., I. M. S. Ry. Co. v. Amos,
We are, therefore, of the opinion that the decree of the lower court should not be disturbed, and its judgment is, accordingly, affirmed.