| Ark. | Jul 15, 1907
(after stating the facts.) In the case of James v. Gibson, 73 Ark. 441, the court said: “The fraud which would vitiate the judgment -must have been, not alone in the original cause of action upon which the allowance was obtained, but that practiced in the procurement of the judgment.”
The Iowa judgment upon which the Arkansas County judgment rested was declated void by the Iowa court, which had jurisdiction over it, eight days after the Arkansas judgment was rendered. Therefore, it may be taken that the original cause of action was fraudulent in law because without service, and there was a defense to it (although there seems to have been no adjudication that the debt upon which the justice’s judgment rested did not exist) ; yet that aloné will not vitiate this judgment unless there was fraud in the procurement of it.
When the suit was brought in March, 1898, in Arkansas County, there had been no attack upon the Iowa judgment then sued upon; and there is nothing to show that Crooks, who purchased it after it had been rendered, had any knowledge of the want of service, which did not appear upon the face of the proceedings. At the time that the Arkansas judgment was rendered upon it, there was pending 'in the Iowa courts a suit to set it aside as void; but in that case there were issues joined as to all material facts alleged. 'It was not incumbent upon Crooks to refrain from taking his Arkansas judgment by default because he had litigation with his adversary in Iowa over the validity of the judgment, assuming that he was making his defense in Iowa in good faith .and prosecuting His suit in Arkansas in good faith; and there is nothing in the record to show otherwise.
Therefore, the issue narrows to whether the sickness of Mr. Bowman was sufficient, to relieve him from defending the Arkansas suit. As the case was tried upon the undenied allegations of the complaint in this respect, what is therein stated, heretofore quoted, must be accepted as true. Mr. Bowman was ill several months, but it appears that he became able to attend to business in time to have defended the Arkansas suit, for he says that, as soon as he became able to attend to business, he brought the suit in Iowa. This was on the 30th of August, 1898, and he prosecuted it to, a successful termination on November 18, 1898. Certainly, therefore, he must have been able to have put in a defense to the Arkansas suit, begun in March, sometime before November 10; and, if he had done so, unquestionably judgment would have been deferred until the Iowa litigation settled the question as to whether the judgment sued upon was valid in the jurisdiction where it was rendered.
It is further alleged in his complaint that he was advised that he could not defeat the Arkansas suit until the judgment had been set aside in Iowa, and this is evidently the reason that he did not attempt to answer the Arkansas suit. This advice was not sound. He should have set up the pending litigation with the parties in Iowa, which would have prevented judgment in Arkansas until the litigation between them in Iowa was determined.
The court erred in holding that equitable ground was shown to set aside the judgment.
Reversed and remanded with directions, to dismiss the complaint. '