129 Ark. 131 | Ark. | 1917
(after stating the facts). Appellees are seeking in the circuit court, in a new and independent suit, to set. aside a judgment of the circuit court rendered at a former term in favor of appellant Prank See against the appellees and to perpetually enjoin proceedings'looking to the enforcement of that judgment.
A judgment at law may be vacated and set aside, under the statute, by proceeding in the same court and in the same case, upon the various grounds enumerated in section 4431 of Kirby’s Digest. A judgment may also be vacated, reversed or modified by appeal to the Supreme Court as provided'by law; or, the enforcement of a judgment that is void at law may be perpetually enjoined as one of the peculiar equitable remedies belonging to the exclusive jurisdiction of courts of chancery.' See Pomeroy’s Equity Jurisprudence, secs. 171, 172; 16 Am. & Eng. Enc. Law, p. 342. But we know of no authority, statutory or otherwise, for the proceeding herein instituted. This suit was not instituted under the authority of section 4433 of Kirby’s Digest, or on any of the grounds mentioned in section 4431.
But even if it were conceded that there was authority for this proceeding under section 4433 of Kirby’s Digest, the appellees would not be entitled to the relief sought, because they did not set .up in their complaint or show in their evidence any valid defense to the action in. which the judgment was rendered against them on the writ of garnishment. Under the above sections, 4431 and 4433, of Kirby’s Digest, this was a-prerequisite.
Furthermore, the ground relied on by the appellees that the court had no jurisdiction of the range company can not avail appellees, even if the court had jurisdiction of the present suit. The range company is not a party to this proceeding, and the appellees are in no attitude to set up here that no service was had upon that company in the case in which the judgment was rendered against it in the circuit court in favor of the appellant Frank See, for the appellees here were parties to that proceeding, as garnishees, and they each answered in that suit stating their indebtedness to the range company and raised no objection whatever to judgment being rendered against them on their answer. They did not set up as a defense to that suit that no service was obtained upon the range company, the original debtor, and for that reason plead that the judgment against the range company was void, and that for that reason no judgment could be rendered against them as garnishees. If they intended to avail themselves of1 such a defense that was the time they were called upon to make it, and having virtually confessed their liability as garnishees in that proceeding, they can not now be heard to say that the judgment rendered against them in that proceeding was void for a matter which they could and should have set up in that suit.
The appellees neither alleged nor proved a cause of action. The court therefore erred in rendering judgment in their favor against appellants, and for such error the judgment is reversed, and the cause will be dismissed.
