Burnett v. Burnett

Decision Date21 May 1973
Docket NumberNo. 73--27,73--27
Citation494 S.W.2d 482,254 Ark. 507
PartiesElaine BURNETT, Appellant, v. Bobby Joe BURNETT, Appellee.
CourtArkansas Supreme Court

Simpson & Riffel by J. Kirby Riffel, Pocahontas, for appellant.

Burris & Berry, Pocahontas, for appellee.

BROWN, Justice.

Appellant's motion to set aside a divorce decree was denied and she appeals. The chancellor found that more than ninety days had elapsed between the entry of the decree of divorce and the presentation of the motion, therefore concluding that the motion should be denied.

The petition for divorce was filed April 27, 1972, and personal service was had on June 7, 1972. Appellant did not appear or plead and a decree was entered on July 11, 1972. Some eight days before the expiration of ninety days, appellant filed a motion to set aside the decree. She alleged that she had been advised by the husband that the action would be dismissed, that she was not notified of the hearing which resulted in the decree, and that she had a valid defense. Appellant contends that the chancellor should have granted a hearing on the motion because her motion was filed within 90 days of the entry of the decree, citing Ark.Stat.Ann. § 22--406.4 (Suppl.1971).

We find it unnecessary to interpret the recited statute because, as pointed out by appellee, appellant did not make a prima facie showing of a valid defense. Our Ark.Stat.Ann. § 29--509 (1962 Repl.) provides that a judgment shall not be vacated 'until it is adjudged that there is a valid defense to the action . . .' The word 'valid' as used in the statute means 'meritorious'. Berringer v. Stevens, 145 Ark. 293, 225 S.W. 14 (1920). In Nichols v. Arkansas Trust Co., 207 Ark. 174, 179 S.W.2d 857 (1944) we said:

In a long line of cases beginning with State v. Hill, 50 Ark. 458, 8 S.W. 401, and extending to O'Neal v. Goodrich Rubber Co., 204 Ark. 371, 162 S.W.2d 52, and Davis v. Bank of Atkins, 205 Ark. 144, 167 S.W.2d 876, this statute has been construed as imposing the requirement that a prima facie showing of a valid defense be made before the judgment will be vacated, although it is shown that it was rendered without notice.

Later holdings of the same import are Haville v. Pearrow, 233 Ark. 586, 346 S.W.2d 204 (1961), and Agee v. Wildman, 240 Ark. 111, 398 S.W.2d 542 (1963).

Affirmed.

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5 cases
  • Hargis v. Hargis, 87-10
    • United States
    • Arkansas Supreme Court
    • 22 d1 Junho d1 1987
    ...to the one at bar, in which we affirmed the trial court in dismissing a motion to set aside a judgment, see Burnett v. Burnett, 254 Ark. 507, 494 S.W.2d 482 (1973). Here, the appellant neither alleged nor made a prima facie showing of a valid defense, thus, the decree of the lower court mus......
  • Renault Central, Inc. v. International Imports of Fayetteville, Inc.
    • United States
    • Arkansas Supreme Court
    • 25 d1 Junho d1 1979
    ...meet the burden of a prima facie showing of the existence of a meritorious defense against the action of the appellee. Burnett v. Burnett, 254 Ark. 507, 494 S.W.2d 482; Agee v. Wildman, 240 Ark. 111, 398 S.W.2d 542. In a frequently quoted portion of Nichols v. Arkansas Trust Co., 207 Ark. 1......
  • Wilkins v. Ford, 81-256
    • United States
    • Arkansas Supreme Court
    • 12 d1 Abril d1 1982
    ...to a valid ground to vacate a judgment the moving party must prove a prima facie showing of a valid defense. In Burnett v. Burnett, 254 Ark. 507, 494 S.W.2d 482 (1973), we ... Our Ark.Stat.Ann. § 29-509 (1962 Repl.) (substantially the same as Rule 60(d), ARCP) provides that a judgment shall......
  • National Trailer Convoy, Inc. v. Transit Homes, Inc., 73--26
    • United States
    • Arkansas Supreme Court
    • 21 d1 Maio d1 1973
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