Williams v. Alexander, 140 Ark. 442

140 Ark. 442 | Ark. | 1919

HART, J.,

(after stating the facts). (1-2) The power of the chancery court to act in a proper case to relieve the party against a judgment rendered against him upon the unauthorized appearance of an attorney is not a new thing in this State. In the early case of Sneed v. Town, 9 Ark. 535, this court recognized that a court of chancery would relieve a party from a judgment rendered against him in consequence of the totally unauthorized acts of an attorney. -The general rule is that a defendant against whom a judgment has been rendered on an unauthorized appearance may be relieved against it. 3 Cyc. 532. The records of a court regular upon their face have a large degree of sanctity attached to them and are not- to he lightly overcome. Hence where the appearance of the parties is entered by regular practicing attorneys, the evidence of a want of authority must be clear and satisfactory in order to warrant a court of equity in relieving the party against the judgment. Wheeler v. Cox 56 Iowa, 36, and Harshey y. Blackmarr, 20 Iowa 161; 89 Am. Dec. 520, and Winters v. Means, 25 Neb. 241, 13 Am. St. Rep. 489.

(3) In State v. Hill, 50 Ark. 458, this court held that equity will not interfere to relieve against a judgment obtained without service where the defendant has no meritorious defense to the action in which such judgment was obtained. This rule has been uniformly followed ever since. In that case the court also said that one who is aggrieved by a judgment rendered in his absence must show not only that he was not 'summoned, but that he did not know of the proceedings in time to make defense, in order to get relief in equity.

Tested by the well known principles just announced, we are of the opinion that the chancellor was right in denying the appellants the relief prayed for. It is true there were nine of them and they each testified in positive terms that they were not served with summons; that they did not employ Reed and Walls and did not authorize them to enter their appearance to the action. It seems to us, however, that they are contradicted by the facts and circumstances in the case. They admit that they employed Reed and Walls to represent them in the suits against the 200 acres of land and that their attorneys made a vigorous defense do these actions. During the pendency of these actions, numerous consultations were had between the attorneys and their clients. The suit to foreclose the mortgage on the forty-acre tract was brought during the pendency of these actions. The defense in the two cases was largely the same. It was natural that they should have employed the same attorneys to represent them in both suits. The attorneys so testified, and they were corroborated in this respect by the attorney for the plaintiff in the foreclosure suit and by the son of the plaintiff who attended to her interest in the matter. The purchaser at the sale also testified that most, if not all of them, were present at the sale. The parties made a common defense to the suits involving the 200-acre tract of land, and it is not natural that only a part of them should have employed attorneys in the suit to foreclose the mortgage on the forty-acre tract. The parties all lived within the jurisdiction of the court, either living in the county where the suit was pending, or in adjoining counties. It was shown that one of the appellants accepted his share of the proceeds of the sale, while others admitted being present at the foreclosure sale, and some of them admitted being present at the trial.

When the whole record is read and considered together, we are of the opinion that the appellants have not made out their case by that clear and satisfactory proof which is required in cases of this sort.

It follows that the decree must be affirmed.