85 Ark. 272 | Ark. | 1908
(after stating the facts.) Nettie Walker and Wallace Vance moved the court to set aside the original decree in this case rendered on constructive service against them, and to admit them to defend. This they had a right to do upon giving bond for cost. Kirby’s Digest, § 6259. In the case of Porter v. Hanson, 36 Ark. 600, the court said: “They (meaning defendants constructively summoned) need not show merits as a condition precedent. They risk the costs, and are entitled to have the matter of merits determined on demurrer or evidence after the doors are opened. They have no right, however, to have the former judgment, meanwhile, vacated on motion. It remains until the case is retried, to be then confirmed, modified or set aside.”
On a retrial of the case the chancellor found that May S. Vance was not due W. R. Pearson the $800 and interest found in the original decree to have been paid out by him as a junior mortgagee to discharge a. prior incumbrance, being for purchase price of the land in question, and therefore that he was not entitled to subrogation for that amount. The court is of the opinion that the findings of the chancellor were against the clear preponderance of the evidence. W. D. Hearn, cashier of the Bank of Pine Bluff, testified that this amount was paid by W. R. Pearson, and gave the date and amount of the checks by which it was paid. Pearson also testified that he paid it, and exhibited the checks given by him in payment. Opposed to this is some testimony from which it might be inferred that the notes making up this amount were, found among the effects of May S. Vance after her1 death.- But this'testimony was too vague and indefinite' to overcome the positive testimony of two witnesses, one of whom had no interest whatever in the case.
The record shows that Charlie Vance was duly served by summons, and was treated throughout the original foreclosure proceedings as an adult. At a subsequent term of the court, he filed his motion to vacate or modify the original decree. Although it does not appear from the record, we presume this was done under section 4431, subdivision 5, of Kirby’s Digest; for neither the condition of the defendant nor error in the proceedings appear from the record in the original cause. “To obtain ■relief under subdivision 5, two elements must concur: (1) The disabled condition of the moving party must not appear in the record; and (2) the error which should cause the judgment to be vacated must not appear in the proceedings.” Jones v. Pond & Decker Mfg. Co., 79 Ark. 200. Under section 4431, subdivision 5, the infant may come in and make his defense. But the original decree will not be set aside unless some error is shown in it. Now, the only difference in the findings of the court on the ■ merits of the case in the original decree and the modified decree is that in the latter the chancellor found Pearson had not paid the $800 and accrued interest, being balance of the purchase money and a prior lien to his mortgage. The question is, did the additional testimony, taken in connection with the testimony in the original cause, warrant the chancellor in so finding? For the reasons given in discussing the same issue as to the defendants constructively summoned, we hold that it did not.
Reversed -and remanded with directions to enter a' decree not inconsistent with this opinion.