Taylor v. King, 135 Ark. 43

Taylor v. King

135 Ark. 43 | Ark. | 1918

HART, J.,

(after stating the' facts). (1) The decision of the chancellor was correct. In the first place, it may be said that the issues sought to be raised in this suit might have been litigated and decided in the suit to foreclose the vendor’s lien on the land in controversy which was brought against these same defendants. The rule has been often announced in this court that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit. Church v. Gallic, 76 Ark. 423; Livingston v. New England Mortgage Security Co., 77 Ark. 379; Morgan v. Kendrick, 91 Ark. 394; Pulaski County v. Hill, 97 Ark. 450; Phillips v. Colvin, 114 Ark. 14. "When the suit was brought against the defendants to foreclose the vendor’s lien on the land in controversy for the purchase money, it was the duty of the defendants to have presented all the defenses they might have to the suit. The defendants knew as well then as they did when this suit was brought the defenses they now present. All of the rights and matters asserted in this suit by the defendants could have been adjudicated in the foreclosure suit. Having failed to interpose any defense to that suit, they are barred by the decree in that case from seeking further to adjudicate the question in this case.

(2) It is also insisted that the decree of the chancery court foreclosing the vendor’s lien of the plaintiff on the land in controversy is void because no service of summons was ever had upon Ellen Modest and Maggie Nesbit. It is true the evidence shows that Maggie Nesbit and Ellen Modest have been residents of the State of Louisiana since prior to the date of the first contract with D. L. King; but it also shows that the part of Louisiana where they reside was near to the part of Arkansas where all the transactions and court proceedings herein.involved were had. .The decree foreclosing the vendor’s lien of D. L. King upon the land in controversy recites that personal service was had upon Julia Taylor and constructive service was had upon Ellen Modest and Maggie Nesbit. A personal judgment was rendered against Julia Taylor for the amount of the debt; but this branch of the case was continued as to Maggie Nesbit and Ellen Modest. At a subsequent term, judgment was rendered against them for the balance of the debt and the judgment itself recites that personal service was had upon them. ' The cross-complaint of the defendants constitutes a collateral attack upon the decree of the chancery court foreclosing the vendor’s lien of King and rendering judgment in his favor against the defendants for the amount of the debt.

Therefore the presumption is in favor of the validity of the decree in the foreclosure suit and the subsequent personal judgment against the defendants in the same court. The decree having recited that the parties were duly served with summons, the allegation and proof of the defendants to the effect that summons was not served upon them as required by law can not prevail against a judgment or decree regular on its face in a collateral attack. Clay v. Barnes, 121 Ark. 474; Cassady v. Norris, 118 Ark. 449; Crittenden Lumber Co. v. McDougal, 101 Ark. 390; and Livingston v. New England Mortgage Security Co., 77 Ark. 379.

It follows that the decree must be affirmed.