Baldwin v. Thomas

• Decision Date: 31 January 1903
• Citation: Baldwin v. Thomas, 72 S.W. 53, 71 Ark. 206 (Ark. 1903)
• Parties: BALDWIN v. THOMAS
• Court: Arkansas Supreme Court

72 S.W. 53

71 Ark. 206

BALDWIN v. THOMAS

Supreme Court of Arkansas

January 31, 1903

Appeal from Ashley Chancery Court, J. G. WILLIAMSON, Special Chancellor.

Affirmed.

STATEMENT BY THE COURT.

Baldwin & Lake recovered judgment against Willis D. Thomas in Ashley county for $ 1,037.86.Afterwards an execution issued on the judgment, and was levied upon 110 acres of land belonging to Thomas.The land was sold under the execution, and purchased by Norman, and after the expiration of the time for redemption the sheriff executed a deed to Norman, who purchased for Baldwin & Putnam.Norman brought an action of ejectment, and recovered judgment for possession of the land.Afterwards Thomas brought this action to enjoin Baldwin & Putnam and Norman from enforcing either of the judgments, on the ground that no summons or notice of the proceedings in which they were recovered was served upon him, and that they were therefor void.He further alleged that he had a good and valid defense to said judgments, among which was the allegation that the land was his homestead, and not subject to sale under execution.

The defendants appeared, and filed their answer to the complaint in which answer they deny that the judgment recovered against Thomas for money was without service, and they set out the summons issued in that action with return of the officer who they say, served the summons, but they made no reference in their answer to the ejectment suit, and make no denial of the allegation of Thomas that he had no notice of the pendency of the action in which that action was recovered.But they denied that the land of Thomas was a homestead, or exempt as such.

On the hearing, the special chancellor before whom the case was tried found that the money judgment was based on a sufficient service of summons, and was valid, but that the land levied upon was the homestead of Thomas and exempt from execution.He therefore enjoined the enforcement of the judgment against the land for the reason that it was, in his opinion, a homestead and exempt.Baldwin & Putnam and George W. Normandefendants, appealed.

Judgment affirmed.

Geo. W. Norman, for appellants.

The claim of homestead was not well taken.42 Ark. 539.

Turner Butler and Robert E. Craig, for appellee.

A judgment without notice is void.Sand. &H. Dig. § 4192.The false return of the officer that he had served process may be controverted.33 Ark. 778;50 Ark. 458.The facts shown in evidence sustain the ruling upon the question of homestead.42 Ark. 541; Th.Hom. §§ 45, 55, 59;70 Am. St. 107;43 Ark. 429;65 Ark. 473;66 Ark. 383.

OPINION

RIDDICK, J., (after stating the facts).

This was a suit in equity to enjoin two judgments; one a judgment for money and the other a judgment in ejectment for the recovery of land, the latter judgment being based on an execution sale under the former judgment.It seems to have been conceded on the trial that the judgment in the action of ejectment was invalid by reason of the fact that there was no summons served upon Thomas, the defendant in that action, and no question is made here as to that judgment.As to the money judgment, the special chancellor found that the evidence was not sufficient to overcome the presumption arising from the recital of service in the record and the return of the officer that he had served the summons upon the defendant.He therefore held that the judgment was valid...