Boynton v. Chicago Mill & Lumber Co.
| Decision Date | 28 October 1907 |
| Citation | 105 S.W. 77 |
| Parties | BOYNTON et al. v. CHICAGO MILL & LUMBER CO. |
| Court | Arkansas Supreme Court |
Petition for leave to file a bill of review by C. D. Boynton and others against the Chicago Mill & Lumber Company. From a decree denying such relief, petitioners appeal. Reversed and remanded.
W. J. Driver, E. F. Brown, and Murphy, Coleman & Lewis, for appellants. Caruthers Ewing, N. W. Norton, and Lamb & Caraway, for appellee.
The widow and heirs at law of C. D. Boynton, deceased, in July, 1903, filed a petition for leave to file a bill of review, and tendered their bill of review. The chancellor entertained this bill, and granted a temporary injunction upon it. After answer and development of the evidence, a final hearing was had, and the court dismissed the bill of review for want of equity, and the plaintiffs therein have appealed.
Questions of fact, professional ethics, and equity jurisprudence have been presented in the briefs and at the bar. While many of these questions will not be noticed in the opinion, they have not escaped the attention of the court; but only such matters as are controlling will be set out and discussed. There were three suits, representing practically the same property, and between the same parties or successors or privies of those parties; and, for convenience, they will be designated "First Suit," "Second Suit," and "Present Suit"; the last-named being the bill of review.
The First Suit.
On the 1st day of July, 1899, C. D. Boynton filed his complaint in chancery in the Mississippi chancery court against Jas. Haggart and Wm. McMasters, and others claiming under them, in which he alleged title in himself to a large body of land in Mississippi county, the subject-matter of this controversy, and set forth a chain of title to the same. The only portion which is material to this suit is a deed from the Citizens' Bank of Louisiana to W. L. Culberson, of date September 26, 1883. He alleged that Haggart & McMasters claimed title to said land, and set forth their claim of title, which will be hereinafter noticed, and alleged that the other defendants claiming under Haggart & McMasters were trespassers upon the land and were about to interfere with his possession; and he prayed that the deeds under which Haggart & McMasters claimed be canceled as clouds upon his title, and that his title be quieted against the defendants. The complaint was duly verified on the 1st day of July, and there was also an affidavit made on said date and attached thereto, alleging that the defendants were nonresidents of the state of Arkansas, and asking that a warning order issue calling upon the defendants to appear in court in thirty days to answer the complaint. A bond for costs was also given, and on said date the clerk appointed an attorney for the nonresident defendants, and also indorsed upon the complaint a warning order against the defendants. These proceedings conformed to sections 6055-6056 of Kirby's Digest. The warning order was published in a weekly newspaper in Mississippi county for four weeks, the first publication being on the 8th day of July and the last on the 29th of July, 1899. At the October term, 1899, of the chancery court, Haggart & McMasters removed the cause to the United States Circuit Court for the Eastern District of Arkansas. The defendants filed answer and cross-complaint in the federal court. They claimed title in themselves, and asked that their title be quieted against Boynton, and set forth their chain of title. So far as this litigation is concerned, the only material part of their chain of title is as follows: "These defendants admit that the Citizens' Bank of Louisiana executed a paper on September 26, 1883, in favor of W. L. Culberson, but these defendants deny that thereby any title to the lands involved in this suit passed to the said Culberson, for the reason that they were not set out therein, and for the further reason that said paper only attempts to convey such lands, as the Citizens' Bank of Louisiana then owned, and said bank at that time had no right, title, or claim to any of the lands involved in this suit, for the reason that prior thereto, to wit, on the 3d day of May, 1880, a decree had been rendered by the chancery court of Mississippi county, Ark., divesting all title out of the said Citizens' Bank of Louisiana in and to said lands and vesting the same in the heirs of Jeptha Fowlkes." This is the decree which this court considered in Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20. The suit proceeded to judgment in the United States Circuit Court in favor of Haggart & McMasters on the 11th day of June, 1901. Boynton appealed from this decree, and on the 16th of February, 1903, the United States Circuit Court of Appeals of the Eighth Circuit reversed that decree, and directed that the cause be remanded, with instructions to enter a decree quieting the title to the lands in controversy in Boynton. The case is reported in 120 Fed. 819, 57 C. C. A. 301. On the 10th of October, 1903, the United States Circuit Court for the Eastern District of Arkansas entered a decree quieting the title of the Boyntons in pursuance to the mandate of the Circuit Court of Appeals.
The Second Suit.
On the 29th of January, 1901, the widow and heirs at law of C. D. Boynton filed a complaint in the chancery court of Mississippi county against the Chicago Mill & Lumber Company. The allegations of this complaint are practically the same as those in the first suit, with these differences: First, they allege the death of Boynton, and that they are the widow and heirs at law; and, second, that the Chicago Mill & Lumber Company is claiming to own said lands. The Chicago Mill & Lumber Company answered this complaint substantially as Haggart & McMasters had answered the suit of Boynton against them, and added a cross-complaint against the Boyntons, in which it claimed title to the land under the same chain of title set forth by Haggart & McMasters, with the additional claim of a conveyance from Haggart & McMasters to it, which conveyance was executed on July 20, 1899. This cross-complaint was answered. Subsequently the defendant filed an amendment to its answer and cross-complaint, in which it set forth the litigation in the first suit, and alleged that it had gone to a final judgment in favor of Haggart & McMasters; that by virtue thereof the title of Haggart & McMasters had been quieted against Boynton and those claiming under him, and that said title had passed to it by virtue of the conveyance of Haggart & McMasters to it, and a copy of the decree was attached to the amendment. The plaintiffs answered this amendment. They denied the force and effect of the res adjudicata therein set up, and put in issue the rendition of the decree in the United States Circuit Court. At the time this plea of res adjudicata was entered, the appeal from the judgment of the Circuit Court was then pending in the United States Circuit Court of Appeals. This cause proceeded to a hearing before the chancellor at chambers in Wynne, Cross county, with an understanding that the decision of the chancellor would be entered at the ensuing term of the Mississippi chancery court. There is conflicting evidence and considerable discussion as to an alleged agreement of counsel covering the completion of the record in such a way that it could be perfected for appeal. But, as the court views the questions, none of these matters are material.
One matter, however, developed there which has become material, and that is the evidence used to prove the decree in the case of Fowlkes' Heirs v. Citizens' Bank of Louisiana, divesting the title from the Citizens' Bank of Louisiana, and vesting it in said Fowlkes' heirs. Mr. N. F. Lamb, the attorney representing the defendant at this hearing, testified as follows: The chancellor found against the plaintiffs in this action, and a decree to that effect was entered at the October term of the Mississippi chancery court. The decree does not state the grounds of decision. It shows that the case was submitted on the pleadings, which were enumerated, the documentary evidence, and the stipulation of counsel; and it does not identify the documentary evidence and the stipulation of counsel is not on file. It is concerning this documentary evidence and stipulation of counsel that much of the evidence and discussion is here directed, none of which it is essential to notice here. No appeal was prosecuted from this decree.
The Present Suit.
As stated, this suit was filed in July, 1903, and asks a vacation of the decree in the second suit, and assigns many reasons therefor. Issue was taken on practically all of the allegations in the complaint, and a hearing was had in which all the matters above outlined were developed, and many more, resulting in a decree against the plaintiffs; and it is the refusal of the court to vacate that decree in the second suit that this court is called upon now to...
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