79 Ark. 210 | Ark. | 1906
This is a suit in the chancery court of Mississippi County, Chickasawba District, brought by appellant, Cicero Wheeler, against appellees, B. F. Bennett, Dora Lollar, and certain other parties to annul and vacate a decree of that court rendered at a former term in a suit instituted by appellees against appellant, and others, for partition of. certain lands aggregating several thousand acres, the particular tract claimed by appellant having been allotted to appellees Bennett and Lolar in the division. He alleged, for grounds of complaint, that he was not served with summons, did not appear in the suit, and had no information of the pendency thereof until after the rendition of the decree.
The decree for partition sought to be annulled was rendered at the October term, 1900, and the final order of the court confirming the report of commissioners dividing the lands was rendered at the October term, 1901. The present suit was commenced March 11, 1903.
Appellees alleged, among other defenses, that appellant had on September 2, 1902, instituted suit against them in the same court, setting forth the same cause of action and seeking the same relief as in this suit, and that said court at the October term, 1902, rendered a final decree, upon the pleadings and proof, dismissing the complaint for want of equity. Said decree is pleaded as a bar to appellant’s right to maintain this suit.
The complaint in the former suit is set forth in the record, and discloses substantially the same allegations as contained in the complaint in the present suit.
The decree is as follows:
“Chancery Court, Chickasawba District, Mississippi County, Arkansas.
“Cicero Wheeler, Plaintiff,
v.
B. F. Bennett and Dora Lollar, Defendants.
“Comes the plaintiff by his attorneys, Little & Buck, and the defendant, though duly served with process by warning order published as the law directs, came not, but made default. This cause is heard upon the pleadings, affidavit of plaintiff and the record of decree and report of partition in the case of Bennett et al.. v. Bugg et al., in the chancery court of Mississippi County, and the argument of counsel, and, upon consideration, the court finds that there is no equity in the plaintiff’s complaint. It is therefore considered by the court, adjudged and decreed that plaintiff’s complaint herein be and the same is dismissed at plaintiff’s cost.”
It is urged in behalf of appellant that the decree in the former suit was in effect a nonsuit or dismissal for want of prosecution, and was, therefore, without prejudice to another suit upon the same cause of action. The recitals of the decree do not sustain that contention. It appears therefrom that the cause was heard by the court “upon the pleadings and affidavit of plaintiff and the record of decree,” etc., and that upon consideration the court found no equity in the complaint, and dismissed it. The defendants in that suit (appellees Bennett and Dollar) were constructively summoned, and made no appearance; so, notwithstanding the default, appellant was required by law to prove his cause of action against them. Kirby’s Digest, § 6253. The court found the proof to be insufficient to sustain the allegations of the complaint, and dismissed it. That decree was not appealed from or set aside, so far as this record discloses, and therefore barred appellant from prosecuting another suit upon the same cause of action.
Affirmed.