| Ark. | Jan 10, 1910
(after stating the facts).
“The court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order. * * *
“Fourth. For fraud practiced by the successful party in the obtaining of the judgment or order.”
The evidence does not warrant a finding that fraud was practiced by appellant in obtaining the judgment which was vacated in this proceeding. Yet that is the only ground set up in the petition. The evidence shows that appellant, through whom appellee sent its communication to Horton & South, was exceedingly diligent in transmitting it to them, after he received it. The evidence shows that Horton & South, after they were advised of the contents of the letter of appellee requesting them to file answer or to notify appellee if they could not do so, used all the diligence that they could have been expected to exercise to notify appellee that they were employed by appellant and therefore could not represent appellee. The testimony of Horton & South gives a reasonable explanation of why they did not discover the contents of the letter earlier. They were under no legal or moral obligations to appellee. They were under a legal as well as a moral obligation-to serve their client to the best of their ability, and, as we view the evidence, they could not have been more courteous to appellee without being derelict to their client. He was insisting on a trial, and, for aught that appears to the contrary, he was entitled to it. He was not practicing any fraud or deception on the court in insisting on a trial of his case. He believed, and at least one of his counsel shared the same belief, that the letter to Horton & South was but a subterfuge to secure a continuance of the cause. The letter itself, as well as the circumstances under which it uras transmitted, warranted such conclusion on their part, even’ though, in fact, their conclusion may have been erroneous. If appellant believed that he had a meritorious cause of action against appellee, and that appellee was endeavoring by the method adopted to postpone the day of settlement, he was not culpable, and was practicing no fraud,-in urging his case to a hearing. Nor could his counsel have ignored his request to insist on a trial, under the circumstances, without being unfaithful to him. The evidence is set out in detail and speaks for itself. We do not discover any element of fraud, either actual or constructive, in .the case. There were no concealments or misrepresentations on the part of appellant or his counsel.
The burden was on the appellee, and it fails to show that any fraud was practiced on the court by appellant in obtaining the judgment against appellee. On the other hand, the testimony of appellant and of his attorneys, Horton & South, shows affirmatively that no fraud was practiced. The testimony of appellant and of Horton and of South is reasonable and consistent. When considered with all the other evidence, the only reasonable conclusion to be drawn from it is that no fraud was practiced on the court in obtaining the judgment, but that appellee lost its defense, if it had any, to appellant’s alleged cause of action through its own negligence. This court in Izard County v. Huddleston, 39 Ark. 107" date_filed="1882-11-15" court="Ark." case_name="Izard County v. Huddleston">39 Ark. 107, said: “The statute to vacate judgments by this proceeding is in derogation not only of the common law, but of the very important policy of holding judgments final after the close of the term. Citizens must have confidence in the judgments of our judicial tribunals as settlements of their controversies, and there should be some end of them. Unless a case be clearly within the spirit and policy of the act, the judgment should not be disturbed.”
The judgment is therefore reversed with directions to dismiss the petition to vacate judgment.