63 Ark. 513 | Ark. | 1897
(after stating the facts.) We are of . , the opinion that the decree of the circuit court should be affirmed. The record shows that the case was heard partly on evidence taken orally at the bar of the court, and this oral evidence was not reduced to writing- or preserved by bill of exceptions, and is not contained in the transcript upon which the case was submitted for decision here. The findings of the circuit court must be presumed to be correct until such presumption is overturned by an affirmative showing .to the contrary; and, in the absence of a portion of the evidence upon which the court based its findings, we must presume that those findings are correct. “This presumption prevails after decree rendered to the extent of curing every defect in the allegations of the pleading which, by reasonable intendment, may be considered as having been proved.” Hershy v. Baer, 45 Ark. 240.
It.can fairly be inferred from the pleadings in this case that White, having entered into a partnership with Smith and Hall for the purpose of buying a patent right, obtained, through collusion with Lake, the owner of the patent right, a secret advantage over his co-partners; that the $1,000 paid by White was the full consideration paid by him for the patent right and store house and lot; that the note for $1,500 was, by'agreement with Lake, executed only as a blind, with the secret understanding that the same was not to be paid, and that this advantage was given to White by Lake for his influence in inducing his co-partners, Smith and Hall, to enter the partnership and purchase said patent right; An arrangement of this kind, b}'- which one partner obtains an unfair advantage at the expense of his co-partners, is a fraud upon their rights, and would justify a decree such as was entered by the court in this case. Howell v. Harvey, 5 Ark. 270, S. C. 39 Am. Dec. 376; Densmore Oil Co. v. Densmore, 64 Pa. St. 43; 1 Bates, Partnership, § 304; 17 Am. & Bug. Bnc. Law, 1101.
We can agree with counsel for appellant that, so far as the record shows, there is little evidence to support the finding and decree that the note executed by White to Lake for $1,500 was without cousideration and void; but we must presume that the oral evidence, not preserved in the record, was sufficient to support this finding also.
It is further said that there was no service of process upon defendant Lake, that he did not appear, and that the court was without jurisdiction to render a decree cancelling and declaring void the note for $1,500, owned by him. Lake was a necessary party, and' if the court was without jurisdiction as to him, the decree should be reversed, for in such a case the effect of the decree would be to take property from White for the purchase of which he had executed his note, and yet leave him subject to a suit upon such note. But the decree of the circuit court recites that Lake, “being regularly served with process, failed to appear.” This recital in the record that the defendant Lake was regularly served with process is, under our statute, even on appeal, frima facie evidence of that fact, and must be taken as true, unless there is something in the record to contradict it. Sand. & H. Dig., 4191; Coons v. Throckmorton, 26 Ark. 60.
There appears in the record a copy of a summons directed to the sheriff of Pope county, and commanding him to summon Geo. Lake, John W. White, Lalla White and P. N. Hopkins to answer a complaint in equity filed by plaintiffs. There is no return on this summons, but it is the fact of service of process, and not the return thereof, that gives the court jurisdiction over the person of a defendant. Works, Courts and Jurisdiction, p. 287, § 39. It may be that the summons was served, but the sheriff neglected to make a written return thereof, or it may be that an alias summons was issued and served, but not copied in the record. There were three other defendants included in the summons besides Lake, and each of them appeared and answered, and it is not denied that they were served with process. On the contrary, the appellant testified that he and Lake were both served. We therefore conclude that the sheriff either failed to make a written return of the summons, or that, if made, such return was omitted from the record. This does not contradict, but tends rather to support, the recital in the record that Lake was served with process, and we must presume such recital to be correct, and that the court had jurisdiction of the defendant.
The judgment is therefore affirmed.
