Arkadelphia Lumber Co. v. Asman

• Citation: 95 S.W. 134
• Parties: ARKADELPHIA LUMBER CO. v. ASMAN.
• Decision Date: 04 June 1906
• Court: Supreme Court of Arkansas

95 S.W. 134

ARKADELPHIA LUMBER CO. v. ASMAN.

Supreme Court of Arkansas.

June 4, 1906.

Appeal from Clark Chancery Court; Jas. D. Shaver, Chancellor.

Action by H. R. Asman against the Arkadelphia Lumber Company, in which plaintiff obtained judgment, and defendant appeals from a judgment overruling a motion to correct the judgment entry, and suit by the Arkadelphia Lumber Company to restrain proceedings under the judgment, and the lumber company appeals from a judgment sustaining a demurrer to the complaint. Judgment overruling the motion reversed, and judgment and decree sustaining the demurrer affirmed.

J. H. Crawford, for appellant. McMillan & McMillan, for appellee.

McCULLOCH, J.

This is an action brought by appellee to recover the sum of $400 alleged to be due him by appellant for salary. The case was here on a former appeal, and the facts are stated in the opinion of the court. 68 Ark. 526, 60 S. W. 238. The case was tried anew, and judgment again rendered against the defendant, and an appeal taken. On the second appeal appellant showed by its bill of exceptions that the case was not heard before the regular judge of the court, as recited in the record entry of the judgment, but that the regular judge had vacated the bench and absented himself, and that one of the attorneys of the bar had assumed to act as special judge without having been elected, and the case was tried before a jury whilst he was presiding. This court held that the record, showing that the regular judge presided, could not be attacked by recitals of the bill of exceptions, and dismissed the appeal. 72 Ark. 320, 79 S. W. 1060. The court held that, if the record failed to speak the truth in that respect, the remedy was to procure an amendment. Appellant thereupon filed in the circuit court of Clark county, in vacation, a motion to correct the said judgment entry and alleged the foregoing facts concerning the absence of the regular judge. On the same day appellant filed its complaint in the chancery court of Clark county against the appellee, Asman, and the sheriff of Clark county, setting forth the same state of facts concerning the absence of the regular judge and the incorrect recitals of the record as to his presence, and also alleging that execution had been issued on said judgment and was about to be levied, and that Asman was a nonresident of the state and was insolvent. The prayer of the complaint is that further proceedings under said judgment be enjoined. The chancellor sustained a demurrer to the complaint, and an appeal was taken to this court. The circuit court overruled the motion for amendment of the record, and an appeal to this court was also taken from that decision. Both appeals, therefore, involve substantially the same question, and are presented together.

As has already been pointed out, this court held, in dismissing the former appeal, that the proper method by which the alleged frailty in the proceedings below could be raised was by motion to correct the record entry of the judgment so as to make it speak the truth. In that way it could be shown that the regular judge was absent, and that the trial was conducted before an incumbent of the bench who had not been elected as special judge. Such a showing and correction of the record would have rendered the judgment void. Arkadelphia Lumber Co. v. Asman, 72 Ark. 320, 79 S. W. 1060; Danby v. Beard, 39 Ark. 254; Gaither v. Wasson, 42 Ark. 126; Wall v. Looney, 52 Ark. 113, 12 S. W. 202. The learned circuit judge, in overruling the motion, based his decision on the ground that the record entry sought to be amended had been originally made with the...