Barber v. Sager
| Decision Date | 24 November 1919 |
| Docket Number | (No. 10.) |
| Citation | 216 S.W. 36 |
| Parties | BARBER v. SAGER et al. |
| Court | Arkansas Supreme Court |
Action by C. L. Barber against William Sager and others, to enforce specific performance of a contract and to vacate a decree. Decree for defendants, and plaintiff appeals. Affirmed.
Jas. E. Hogue and Geo. M. Heard, both of Little Rock, for appellant.
Jno. W. Moncrief and C. L. O'Daniel both of De Witt, for appellees.
This suit was brought by appellant Barber for the purpose of enforcing the specific performance of a contract to convey land and for vacating a decree previously pronounced in another suit between Barber and William Sager and his wife under the provisions of section 4431 of Kirby's Digest. This previous suit had itself been brought for the purpose of compelling the Sagers to specifically perform a contract to convey land to Barber.
The first complaint against appellee Sager and his wife was filed on June 24, 1917. William Sager filed an answer to this complaint in vacation on July 14, 1917, but his wife filed no answer. No notice of the filing of this answer was given, and Barber and his attorney were not advised of that fact until about two weeks before the beginning of the term of court to which the suit was brought, and which convened on September 24th. As soon as Barber's attorney was advised that this answer had been filed, he took up by correspondence with Sager's attorney the question of obtaining an agreement by which the testimony on both sides might be taken in open court and the cause heard at the September term. No agreement had been reached when court convened, and on that day Sager appeared through other attorneys, and withdrew his answer and filed a demurrer and also a separate motion to dismiss the complaint for want of a bond for costs.
On the second day of the term appellees Devore and Sanders, who had not been made parties to the first suit (but were made defendants in this), appeared, through still other attorneys, and filed an intervention, which was in the nature of an answer to the complaint and cross-complaint, against both Barber and Sager and his wife. This pleading contained an allegation that Barber was a nonresident of the state, and that he refused to give a bond for costs, and that Barber had not and would not prosecute his suit, and that the complaint did not state a cause of action.
On the day this intervention was filed a decree was rendered, sustaining the demurrer and granting the interveners the relief prayed by them against the Sagers; the intervention being in the nature of a suit for specific performance to compel the conveyance of the same lands described in Barber's complaint.
On March 18, 1918, Barber filed his second complaint, making the Sagers and Devore and Sanders defendants, which recited the facts set out above, and in this complaint he asked that the decree rendered at the preceding term be vacated, and that the Sagers be compelled to specifically perform by conveying him the lands described.
On May 1, 1918, the defendants in the last complaint filed separate demurrers, which were sustained on February 3, 1919, and this last complaint dismissed for want of equity. From this decree Barber has prosecuted this appeal. The pleadings and the decree in the first suit are made exhibits to the complaint in the second suit.
All the proceedings referred to were had in the chancery court for the Southern district of Arkansas county. The court in that district convenes on the first Monday in February and the fourth Monday in September of each year.
Appellant Barber insists that the decree which he seeks to vacate was procured by fraud practiced upon the court. His insistence is that his first complaint was filed on June 24th, 1917, and under the Pleading and Practice Act (Kirby's Digest §§ 5976-6381) the answer was due to be filed by noon of the first day of the court after the service of the summons and no trial could have been had, except by consent, until ninety days after the pleadings were completed, and that in any event he could not have demanded a trial until long after the time for the court to meet. That the answer of Sager was filed with the clerk in vacation on July 14, 1917, but to make it effectual, as if filed in court on that date, it was necessary for Sager to give the notice called for by section 6118 of Kirby's Digest, and that the filing of this answer made up the issues so far as Sager was concerned and, in the absence of any time...
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