Boyd v. Roane

• Decision Date: 22 October 1887
• Citation: 5 S.W. 704,49 Ark. 397
• Parties: BOYD v. ROANE
• Court: Arkansas Supreme Court

5 S.W. 704

49 Ark. 397

BOYD v. ROANE

Supreme Court of Arkansas

October 22, 1887

APPEAL from Jefferson Circuit Court in Chancery, JOHN A. WILLIAMS Judge.

Decree dismissed.

McCain & Crawford for appellants.

1. The record shows that summons was issued for the minor defendants; that a guardian ad litem was appointed; and the statute requires service of process before the appointment of a guardian. Gould's Dig., p. 852, 219. The phrase "et al." has the same legal effect as if the name of every defendant was set out. The appointment of a guardian ad litem, and his appearance, as shown by the decree, and the fact that summons was issued, raise a strong presumption that they were served, and oral testimony is not allowable to overcome this presumption.

But if they were not served, it is not jurisdictional. The Chancery Court is the guardian of its infant wards. 33 Ark. 425. It is necessary to make them parties to a suit affecting their rights, but when they are made parties, the Chancellor as their guardian will see that a defence is made. The law will not allow an infant to defend, and consequently, notice to him is of secondary importance. 42 Ark. 222.

The failure to serve process on a minor before appointing a guardian, is a reversible error, an irregularity, but does not render a judgment void, nor affect the jurisdiction. 66 N.Y. 175; 54 Tex. 220; 25 Ala. 507; 2 A. K. Marsh. (Ky.) 591; 8 Gill & J. (Md.), 136; 4 Dana, 429; 7 Mo. 426; 3 Ohio St. 494; 8 id., 614; 19 Cal. 629; 42 id., 484. As to the general jurisdiction of chancery in the matter of infants see Bisp. Eq., sec. 543; 33 Ark. 428.

Sales of land under orders of Probate Courts, without giving notice as required by section 179 Digest are valid and binding unless appealed from. 31 Ark. 74; 13 id., 507.

If plaintiffs are not barred by the foreclosure suit, they are by the second suit. To this suit all the heirs were parties and proper process issued against them, and duly served. The decree quieted Boyd's title to the "Contentment Place," and enjoined the heirs from interfering with the title, or maintaining any action for same, etc.

Plaintiffs are barred from setting up any claim now, which would have been available as a defence to that suit. Herman on Estoppel secs. 457-8; 7 Wall., 102.

But if this second decree was erroneous for irregularity, it was not a nullity, and could only be vacated by appeal. The allowing affidavits to be read instead of depositions does not make the decree void. 3 Mad. Chy., 225; 8 Iowa 17; and a decree by consent was allowable under the old practice. 1 Brown Chy 422.

2. It is now too late for the infants to complain. They did not avail themselves of their statutory right to attack decrees against them. A decree against an infant may be pleaded against him in bar to a new bill brought after he becomes of age; for an infant is as much bound by a decree as an adult. Story Eq. Pl., sec. 792; 34 La. Ann., 813; 45 Mo. 401; 3 A. K. Marsh., 254-280; 8 Iowa 17; 57 Mo. 362; 27 Ind. 416.

3. The plaintiffs are barred by limitation, even if this suit be viewed as an ordinary bill to redeem. Their right of action accrued the moment Boyd took possession under the foreclosure sale. Jones Mort., 673; Wood Lim., secs. 225, 235; 13 Wis. 264; 3 John. Chy., 129; Jones Mort., 1144; 2 Jac. & Walker, 186. If plaintiffs are not barred in seven years, they would not be in a hundred.

4. Boyd was not a mortgagee in possession, nor did he stand in the shoes of one. He was a stranger to the foreclosure suit, and bought at a judicial sale, and the statute commenced to run at once. McGaughey v. Brown, 46 Ark; 22 Ark. 483; 44 id., 479.

5. If it be claimed that this is a direct proceeding to set aside the decree for irregularities, there are three objections:

First. The proceedings were not brought within one year from the time they attained their majority, except as Hugh Roane.

Second. Under the old chancery practice, in a bill to foreclose and sell, infants were not allowed a day to show cause. In all other cases they were. 3 Johns. Ch., 367; 2 Barb. Ch. Pr., 210. By express provision they have no such right now, if they did not enjoy it under the old practice. Mansf. Dig., sec. 5184.

Third. If plaintiff, Hugh Roane, have the decree of foreclosure reversed for irregularities, this cannot affect the sale. The reversal of a judgment never affects the validity of a sale previously made under a judgment, however erroneous the judgment may have been. 9 Wall., 23; 20 Ark. 583.

Malone & Watson and Metcalf & Walker (of Memphis, Tenn.), for appellants.

1. If the foreclosure decree was not absolutely void, then Boyd's title is good. The most that can be said of the decree is that it is voidable and not void. It was incumbent on the heirs to show by the record itself, that they were not served, not by evidence aliunde.

This is a collateral attack upon a domestic judgment. The record shows affirmatively that the heirs were before the court, and hence the decree was not void. 34 Cal. 402; 59 Tex. 212; 1 Smith's Lead. Cases, 5th Am. ed., 823; 25 Ind. 382; 100 Ind. 402; 30 Conn. 198; 9 Gratt. 323; 2 Head, 255-7; 16 Lea, 82; 25 W.Va. 699; 56 Me. 81; 25 Minn. 9; 58 Wisc., 212; 12 Iowa 204; 18 Wall., 365; 117 U.S. 270.

Where the record, supporting a domestic judgment, affirmatively shows jurisdiction, it imports absolute verity, and in a collateral proceeding cannot be contradicted by any manner of proof outside the record. 80 Ill. 307; 27 Iowa 129; 68 Me. 269; 38 Vt. 9; 7 S. & R., 165; 87 Ill. 365; 11 Lea, 181; 100 Ind. 402; 25 W.Va. 692; 42 N.Y. 26; 23 Mich. 286; 13 Ohio St. 446; Freeman on Judg., secs. 123 to 134; Wells on Jur., sec. 30; Hawes on Jur. of Courts, secs. 258-9. See, also, 6 Engl., 519, 551; 18 Ark. 62; 22 id., 391; 42 id., 229; id., 21; 18 Wall., 468.

2. The second decree is an absolute bar to this action. See authorities cited by McCain & Crawford.

3. The whole matter is res adjudicata. Everything urged in the bill as a reason why these decrees should be set aside, could have been pleaded as a defence to the Boyd bill. 7 Wall., 106; 50 Miss. 391; 4 Lea, 380; 30 Iowa 436; Wells Res. Adj., sec. 248; Freeman on Judg., sec. 247.

4. The bill showed on its face that it was barred, and failed to show any fact bringing the case within any of the exceptions of the statute. 16 Ark. 129; 20 id., 195; 24 id., 390; 1 Dan. Chy. Pr., 5th ed., *673; Mansf. Dig., sec. 4116; 46 Ark. 25.

J. M. & J. G. Taylor and Thos. B. Martin for appellees.

1. This is not a bill to redeem, pure and simple. The object is to vacate the two decrees under subdiv. 8, sec. 3909 and 5184 Mansf. Dig. See 33 Ark. 161; 17 Vesey, 178. As to the adults it is a bill of review. 36 Ark. 532.

The decree in the foreclosure suit was void. The infants were not served with process, no defence was made for them, and no proof adduced on the hearing. The code was in force when the decree was entered. Civil Code, sec. 890. If the record had recited service it can be contradicted by testimony aliunde. 36 Ark. 217. Where there has been service the record should show it. Where there has been none it should show an appearance, and when there are several defendants it is not sufficient that the record states that the "defendants appeared." Such a term applies only to those who by service or appearance, have been made parties, and does not include all who have been named in the complaint. 38 Ark. 443; 26 id., 491.

A judgment against an infant without service is void. 115 Ill. 649; 23 id., 445; 39 Ark. 106; 18 B. Mon., 560; 3 Met., 425; 40 Ark. 42.

The court could not appoint a guardian ad litem before service. Mansf. Dig., sec. 4958; 39 Ark. 64; 40 id., 56.

No decree could be entered against the infants, until the guardian appeared and made a substantial defence. Supra. 5 J. J. Marsh., 49. It was error to decree against the infants without proof "by consent." 6 B. Mon., 247; 47 Ark. 300; Mansf. Dig., sec. 4957; 42 Ark. 222.

2. The second suit being based upon the validity of the first decree, falls with it. No proof was made. Ex parte affidavits are not testimony. The guardian could, not bind the infants by consent. No guardian or attorney can make admissions prejudicial to a minor. 47 Ark. 456; 56 Mich. 557. No defense was made for the minors.

3. A judgment against an infant is irregular, and may be set aside at any time when it appears there was no service of process upon him. 88 N.C. 639; 80 Ky. 68; 10 B. Mon., 671; 84 N.Y. 64.

4. Appellees are not barred. Boyd was a mortgagee in possession, under the Real Estate Bank mortgage, of 640 acres of the land, and held the others under the Powell mortgage. See Wood on Lim., sec. 226. As to the homestead Boyd must show seven years occupancy after the arrival of age of Hugh Roane. 47 Ark. 511; 22 id., 567; 42 id., 357.

5. The claims of the creditors are barred. 37 Ark. 155.

U. M. & G. B. Rose for appellants, in reply.

1. If the decree of foreclosure is voidable merely the purchase of Boyd must stand, though the decree be set aside. 34 Ark. 569; 5 id., 424; Freeman on Judgments, sec. 484. A void judgment is a nullity, and a purchaser under it acquires nothing. Freeman on Judg., sec. 117. In no case can a void judgment afford any grounds for the interference of equity. The remedy is certiorari or ejectment. 27 Ark. 414; 37 id., 614; 39 id., 348; 44 id., 513.

Whether this be a bill to redeem or a bill of review, it does not help the cause, for unless the judgment is set aside there can be no redemption; and if the judgment is set aside for error merely, there can be no redemption from Boyd, for his title will remain unaffected.

A judgment shall not be vacated, etc., unless it is adjudged there is a valid defence to the action, etc. Ma...