Bradford v. White

• Decision Date: 22 October 1917
• Docket Number: 185
• Citation: 197 S.W. 1175,130 Ark. 532
• Parties: BRADFORD v. WHITE
• Court: Arkansas Supreme Court

197 S.W. 1175

130 Ark. 532

BRADFORD v. WHITE

No. 185

Supreme Court of Arkansas

October 22, 1917

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

S. A Miller and Geo. F. Jones, for appellant.

1. The chancery court had jurisdiction. 13 Ark. 419; 14 Id 209; 9 Id. 188; 40 Id. 229; 35 Id 529; 4 Iowa 420; 2 R. C. L. 260.

2. The relief prayed should have been granted.

Coleman & Gantt, for appellees.

1. The writ of error coram nobis is a common law writ. A chancery court has no jurisdiction. 2 R. C. L. 306-7; 54 Am. Dec. 120; 60 L. R. A. 572; 205 U.S. 141; 19 L. R. A. 762.

2. The petition is not sufficient to bring the case within our statutory provisions for vacating judgments. Kirby's Digest, §§ 4431, 4433-4. Nor can it be treated as a bill of review. 26 Ark. 600; 47 Id. 17; 21 Id. 528, 531; 95 Id. 517; 104 Id. 562.

3. No cause of equitable relief is stated nor cause for vacating the judgment. 95 Ark. 517; 104 Id. 562; 89 Ark. 160; 52 Id. 316; 39 Id. 107, 110.

To entitle one to relief from the consequences of unavoidable casualty or misfortune preventing him from appearing or defending he must show that he was free from negligence. 122 Ark. 74; 114 Id. 493; 43 Id. 107; 93 Id. 462; 97 Id. 117; 66 Id. 183; 104 Id. 45. No diligence is shown. 97 Ark. 314; 43 Id. 107.

OPINION

HUMPHREYS, J.

Appellant brought suit on the 24th day of February, 1916, against appellees in the Jefferson Chancery Court praying for a writ of error coram nobis for the purpose of reversing a judgment rendered on the 15th day of May, 1913, in an action wherein Mollie L. Bradford was plaintiff and Marcus L. Bradford, Crawford & Hooker, J. C. Bradford and Onie Bradford, his wife, were parties defendant, in so far as it affected the title to the northeast quarter of the northwest quarter of section 14, township 6 south, range 10 west, in Jefferson County, Arkansas. He alleged ownership of said estate by purchase from Marcus L. Bradford on the 13th day of March, 1913, also want of knowledge that the title to his land was involved in the suit of Mollie L. Bradford v. Marcus L. Bradford et al., assigning as a reason his inability to read and write. Excerpts from the judgment were incorporated in his petition but he did not make the entire judgment a part thereof. From the excerpts of the judgment set out in the petition, it appears that Mollie L. Bradford brought a suit against Marcus L. Bradford, her husband, for divorce, and alleged that he was the owner of the land in question. The court found that Marcus L. Bradford was the owner thereof; that on April 11, 1911, Marcus L. Bradford had executed a mortgage to Crawford & Hooker on said real estate; that on March 21, 1913, he had conveyed said real estate to J. C. Bradford by quitclaim deed for a consideration of $ 1 and the assumption of the Crawford & Hooker mortgage; that J. C. Bradford accepted the quitclaim deed with full knowledge of the claim of Mollie L. Bradford for alimony and that his title was subject to the interest and rights of Mollie L. Bradford and of the mortgage lien of Crawford & Hooker. The court rendered a decree in favor of Mollie L. Bradford for an undivided one-third interest in said real estate during her natural life, and in favor of Crawford & Hooker on their mortgage claim; that the land was not susceptible of division in kind and ordered same sold to satisfy the mortgage lien and to pay Mollie L. Bradford her interest therein. It also appears from the decree that the lands were sold by a commissioner for $ 700 to F. G. Smart and S. E. Wilhoit, which sale was approved and confirmed by the court.

A demurrer was filed to the petition predicated upon the theory that a chancery court has no jurisdiction to issue a writ of error coram nobis; and that the petition failed to state any cause of action. The court sustained the demurrer to the petition and dismissed same, from which an appeal has been prosecuted to this court. Appellant contends that chancery courts have jurisdiction to issue writs of error coram nobis, and cites in support of his position, Mitchell v. Conley, 13 Ark. 414; Rawdon, Wright & Hatch v. Rapley, 14 Ark. 203; King & Houston v. State Bank, 9 Ark. 185; Bobo v. State, use, etc., 40 Ark. 224; Adler v. State, 35 Ark. 517.

We have examined the cases and find nothing in them to sustain the position assumed by appellant. All of them, except Adler v. State, treat of the right of a court to amend a decree after term time either by motion or by nunc pro tunc order to make the decree or judgment speak the truth. ...