46 Ark. 272 (Ark. 1885), Reeve v. Jackson

Citation:46 Ark. 272
Opinion Judge:Smith, J.
Party Name:Reeve et al. v. Jackson.
Attorney:W. G. Whipple for appellants. R. A. Howard for appellee.
Court:Supreme Court of Arkansas
 
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Page 272

46 Ark. 272 (Ark. 1885)

Reeve et al.

v.

Jackson.

Supreme Court of Arkansas.

November, 1885

��������� APPEAL from Pulaski Chancery Court. Hon. David W. Carroll, Chancellor.

��������� W. G. Whipple for appellants.

���������The appellee in this suit seeks to litigate over again the very same issues decided in the ejectment suit. The cause is res judicata .

���������The sale in solido was for the best interests of the estate; it was regular, legal and fair, and no fraud or undue advantage is shown. Fraud must be specifically alleged and proved. 34 Ark., 71; 44 ib., Adams & Thomas; 41 ib., 378. Unless fraud is shown in the probate proceedings, the decree should be reversed. 39 Ark., 256; 42 ib., 136; Adams v. Thomas, 44 ib., Greely B. Gro. Co. v. Graves, 44 ib .

��������� R. A. Howard for appellee.

���������Smith, J.

���������This bill was filed to enjoin the execution of a judgment rendered by the Pulaski circuit court, in an action between the same parties, and afterwards affirmed by this court. See Jackson v. Reeve, 44 Ark., 496. A general demurrer to the bill was overruled, and upon the hearing the decree was for the plaintiff.

���������The demurrer should have been sustained. Section 4932 of Mansfield's Digest provides that " a judgment obtained in an action by proceedings at law shall not be annulled or modified by any order in any action by equitable proceedings, except for a defense which has arisen or been discovered since the judgment was rendered." This is a plain provision of the code. It precludes the defendant in a judgment, when the alleged matters of defense were within his knowledge at the time the judgment was rendered, from bringing a separate suit in equity to obtain relief against the judgment; thus abrogating the old chancery method which was recognized in Hempstead & Conway v. Watkins, 6 Ark., 317, and many subsequent cases in our reports. Such is the construction placed by the court of appeals of Kentucky upon the same provision in their code. Chinn v. Mitchell, 2 Metc., 92; Ross v. Ross, 3 ib., 274; Moss v. Rowland's ex'r, 1 Duval, 321; McCown v. Macklin's ex'r, 7 Bush, 308; Emmerson's admr. v. Hevriford, 8 ib., 229.

���������Under the present system of procedure, " the defendant may set forth in his answer as many grounds of defense, counter-claim or set-off, whether legal or equitable, as he shall have." Mansfield's Digest, sec. 1503. " Under the head of equitable defenses are...

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