79 Ark. 16 | Ark. | 1906
(after stating the facts.) Counsel in oral argument and brief urge for reversal the following assignments of error:
“The trial court erred in overruling the following exceptions to the answer of Taenzer:
“1. The record of the suit referred to in said answer does not show that the plaintiff was ever made a party to said suit, and therefore plaintiff is not bound by any judgment rendered therein.
“2. The record of the suit referred to in said answer does not -show that this defendant was ever served personally or constructively in said cause, and therefore plaintiff is not bound by any judgment rendered in said cause.”
1. This is a collateral attack on a decree of partition rendered by the chancery court of Cross County.
The evidence was sufficient to warrant a finding that appellant was a party defendant in the partition suit. That decree, among other things, recites: “On this day came the parties to this cause,, and the defendant, J. M. Levesque, as guardian of Barney Waldron, and says that he, as such guardian, is entitled to one-half'of certain taxes paid out by the father of said minor while in his lifetime, which he can not now ascertain, and the court, being fully advised of the remaining right of the defendant,” orders partition, and an account taken of sums due defendant. The burden of proof was upon appellant to show he was not a party to the suit in partition. In the absence of some affirmative showing on his part that he was not a party, we are of the opinion that the above recitals in the decree of partition were sufficient to justify the chancery court in finding that he was a party. Section 5772 of Kirby’s Digest provides that in a suit for partition every person having an interest “shall be made' a party to such petition” for partition. True, the original petition for partition is not in the record, showing that appellant was named as a party defendant in that suit. But the complaint in this case shows that at the time of the partition suit and the rendition of the decree appellant was the sole owner of an' undivided half interest in the lands in controversy, which were partitioned in that suit. They could not have been partitioned 'legally under the statute without making him a party. Under section 5795 of Kirby’s Digest, Levesque, as guardian of appellant, had authority to institute a partition proceeding for his ward, or to join in one already instituted or “any matter or thing respecting the division of any lands or tenements.” The fact that he did join in the petition for partition and ask for affirmative relief in the way of taxes paid by the ancestor of his ward had the legal effect of making his ward a party to that proceeding. The style of the suit in partition,' and the recitals of the decree in that suit, we think, show clearly that there was at least another party defendant to that suit than Levesque, the guardian. The only other one that could have been properly made a party, according to the facts set up in’ the complaint, was the appellant. Moreover, the recitals of the partition decree, show that Levesque appeared in his representative capacity. Appearing as guardian, it will be conclusively presumed on collateral attack that the ward was a party. All things are presumed to have been rightly done, and the court could not properly have permitted the guardian as such to appear without the ward. The ward was the party, represented, as he had to be, by his guardian.
2. The case of Boyd v. Roane, 49 Ark. 397, and the more recent cases of Clay v. Bilby, 72 Ark. 101; Ballard v. Hunter, 74 Ark. 174, and Johnson v. Lesser, 76 Ark. 465, determine that when a domestic judgment is attacked collaterally, if it appears that the court had jurisdiction of the subject-matter, even though the whole record, when taken together, does not show that the court had jurisdiction of the person, the presumption will be indulged that the parties were duly served, and that the court rendering‘the judgment had jurisdiction of the defendants. These, are well considered cases, and have become rules of property. We adhere to them.
Affirm.