State v. Hill

• Decision Date: 19 May 1888
• Citation: 8 S.W. 401
• Parties: STATE, to Use of MOORE <I>et al.,</I> <I>v.</I> HILL <I>et al.</I>
• Court: Arkansas Supreme Court

8 S.W. 401

STATE, to Use of MOORE et al.,

v. HILL et al.

(Supreme Court of Arkansas.)

May 19, 1888.

Appeal from circuit court, Johnson county; G. L. CUNNINGHAM, Judge.

On 25th day of February, 1882, Emma T. Hill was appointed administratrix of the estate of her husband, John F Hill, deceased, by the probate court of Johnson county, and executed a bond with the following persons as her sureties, to-wit, Marcus Hill, E. C. Estep, W. P. Earnest, W. M. Banks, W. E. Casey, M. W. Earnest, John R. Hill, Z. T. Hill, H. L. W. Hill, and R. J. Gray. In August, 1883, she tendered her resignation, and an administrator de bonis non was appointed. The court ordered her to turn over to him the sum of $1,734.89, together with notes and accounts amounting to about $18,000. She failed to pay over all the money mentioned in said order, and suit was brought on this order for the balance of the money at the May term, 1884, of the Johnson circuit court. All the summons were issued on the 16th day of April, 1884. One was directed to the sheriff of Johnson county, commanding him to summon W. P. Earnest, W. M. Banks, W. E. Casey, M. W. Earnest, Z. T. Hill, and H. L. W. Hill, and was served on all them, as shown by sheriff's return, on 24th, 25th, and 26th days of April, 1884. The second summons was directed to the sheriff of Madison county, commanding him to summon John R. Hill and E. C. Estep, and was served on the 28th day of April, 1884. The third summons was directed to the sheriff of Carroll county and was served on the 30th day of April, 1884, on R. J. Gray and Emma T. Hill. At the May term, 1885, judgment was obtained against all the defendants, as sureties on the bond, except Marcus Hill, who was not sued. Execution was issued in December, 1885, and levied on the property of appellees. On 16th day of January, 1886, the defendants sued out a writ of injunction, and a temporary restraining order in vacation. At the May term, 1886, the appellants filed an answer alleging that appellees had been duly served with process, and had appeared by counsel and demurred, and consented to a continuance. At the December term, 1886, the court made the temporary restraining order perpetual, and from this order the present appeal is taken.

F. R. McKennon, for appellants. J. N. Sarber, for appellees.

COCKRILL, C. J.

The doctrine announced in Ryan v. Boyd, 33 Ark. 778, that an officer's false return of service of process shall not preclude the defendant from showing the truth in a proper proceeding to be relieved from the burden of a judgment based thereon, is, we think, sustained by reason and the weight of authority. Gregory v. Ford, 14 Cal. 138, 73 Amer. Dec. 639, and note; Taylor v. Lewis, 19 Amer. Dec., note p. 137; 2 Lead. Cas. Eq. pt. 2, p. 370; Duncan v. Gerdine, 59 Miss. 550; Owens v. Ranstead, 22 Ill. 161; Colson v. Leitch, 110 Ill. 504; Chambers v. Manufactory, 16 Kan. 270; Blakeslee v. Murphy, 44 Conn. 188. The consideration of public policy which requires that a record shall be taken as bearing uncontrovertible truth upon its face (Boyd v. Roane, 49 Ark. 397, 5 S. W. Rep. 704; Newton v. Bank, 14 Ark. 12) yields to the equitable principle that one who is guilty of no laches shall not be held to pay the penalty of another's fraud or mistake, if he takes prompt and proper steps to be relieved from the danger of impending injury. Evidence tending to contradict the record is heard, in such cases, not for the purpose of nullifying the officer's return, but to show that the judgment defendant has been deprived of the opportunity of asserting his legal rights without fault of his, and that it would be unfair to allow the judgment to stand without affording him the chance to do so. The principle that affords relief to one who has been actually summoned, but who has been prevented through unavoidable casualty from attending the trial, governs. Relief is not granted merely because the court assumed jurisdiction of the defendant's person upon a false return of service of process. 2 Story, Eq. Jur. § 898, and note. To warrant interference, the false return must have resulted in an injury to the defendant under such circumstances as would render it unconscionable to permit the judgment to be executed. Gibson v. Armstrong, 32 Ark. 438; Secor v. Woodward, 8 Ala. 500; Fowler v. Lee, 10 Gill & J. 358; Johnson v. Branch, 48 Ark. 535, 3 S. W. Rep. 819. One who is aggrieved by a judgment rendered in his absence can have relief only upon showing that he was not summoned, and did not know of the proceeding, in time to make defense. 2 Lead. Cas. Eq., supra; Bently v. Dillard, 6 Ark. 79; Conway v. Ellison, 14 Ark. 360. This principle is not in conflict with the rule which precludes a defendant from traversing the truth of the officer's return, in the cause in which it is made, before judgment, (see Ex parte Railway Co., 40 Ark. 141; Herm. Estop. § 452, p. 540,) because he is then put upon his guard in time to prevent an unjust judgment by making his defense to the action; and, if he fails to do so, he will be taken as making his election to look to the officer who made the false return for indemnity. We therefore reaffirm the principle of Ryan v. Boyd to the extent above stated. But we cannot accede to the doctrine, there announced, that a judgment at law will be vacated in equity where the judgment defendant has no meritorious defense to the action in which the judgment was rendered. Such a rule is contrary to the principle upon which equity interferes in such cases; that is, to prevent an unconscionable advantage. If the court ought to have compelled the payment of the demand upon which suit was brought, only a technical and not a real wrong is done the defendant in entering the judgment against him; and, by affording him the opportunity of offering his defense before the judgment can be enforced, he is not deprived of any constitutional or other right. The rule requiring a showing of merits before relieving against a judgment obtained through unavoidable casualty or misfortune has always been enforced by this court, both before and since the decision in the case of Ryan v. Boyd. It holds good, it seems, even in cases where the judgment is obtained through fraud. White v. Crow, 110 U.S. 183, 4 Sup. Ct. Rep. 71; Lawson v. Bettison, 12 Ark. 401. When equity ventures to interfere with a judgment at law because of an officer's false return of service of process, it is upon one of these well-established heads of equity jurisdiction; and the reason which demands the rule in the one instance applies also in the other. "In analogy to its usual course of procedure," say the supreme court of California in Gregory v. Ford, supra, "it would seem that the judgment plaintiff, having acquired, without any fraud on his part, a legal advantage, would be permitted to retain it as a means of securing a just debt; and that a court of equity would not take it away in favor of a party who comes into equity acknowledging that he owes the money, and claims only the barren right of being permitted to defend against a claim to which he had no defense. It would certainly seem that it would be quite as equitable to turn the defendant in execution over to his remedy against the sheriff for a false return, under such circumstances, as to relieve him from judgment, and turn the plaintiff for redress to the sheriff; for the effect of vacating the judgment now...