Capital Fire Ins. Co. v. J. H. Davis & Son

• Decision Date: 24 February 1908
• Citation: 108 S.W. 202
• Parties: CAPITAL FIRE INS. CO. et al. v. J. H. DAVIS & SON.
• Court: Arkansas Supreme Court

Page 202

108 S.W. 202

CAPITAL FIRE INS. CO. et al. v. J. H. DAVIS & SON.

Supreme Court of Arkansas.

February 24, 1908.

Appeal from Circuit Court, Cleburne County; Brice B. Hudgins, Judge.

Action by J. H. Davis & Son against the Capital Fire Insurance Company and others. The court refused to vacate a default judgment against defendants, and they appeal. Reversed.

J. W. & M. House and C. S. Collins, for appellants.

McCULLOCH, J.

Appellees, J. H. Davis & Son, instituted this action in the circuit court of Cleburne county against the Capital Fire Insurance Company, an Arkansas corporation, and certain individuals alleged to be sureties on an insurance bond, to recover upon a policy the value of the insured property which had been destroyed by fire. It is alleged in the complaint that the policy was issued by the Arkansas Mutual Fire Insurance Company, another Arkansas corporation; that said sureties had executed a bond to the state of Arkansas conditioned upon the payment of all losses to policy holders of said company; and that before the occurrence of the fire which destroyed appellee's property said company had become merged into the Capital Fire Insurance Company under a contract whereby the last-named company assumed and agreed to pay all liabilities of the first-named company. The complaint also alleges that the property was destroyed by fire, the value of the property being stated, and proof of loss had been duly made.

The action was brought to the October term of the court which commenced on October 1, 1906, and summons was served in time for trial at that term. Judgment was rendered on October 3, 1906, which was the third day of the term, in favor of appellees against all of the appellants in their absence and in the absence of their attorneys, and the court was immediately adjourned for the term. At the next term of the court appellants filed and presented their complaint praying that the judgment be vacated on the alleged ground, among others, of unavoidable casualty or misfortune which prevented them from appearing or defending. The complaint was heard by the court, and the prayer thereof denied, and an appeal to this court has been duly prosecuted.

The facts upon which appellants base their right to have the judgment against them vacated, are as follows: Mr. C. S. Collins, a member of the bar at Little Rock where the appellant company was domiciled and the other appellants resided, was employed to represent appellants and defend against the action. On September 26, 1906, he prepared and forwarded to the clerk of the Cleburne county circuit court what he calls a special plea on behalf of the sureties, setting forth the fact that they were only obligated on a fidelity bond under the statute, and not liable for losses under policies, and that their principal, the Arkansas Insurance Company, should be a party to the action. He also prepared and forwarded a special plea and answer on behalf of the Capital Fire Insurance Company. These several pleas were received and filed by the clerk on September 28, 1906. On September 26th, he addressed a letter to the circuit judge, and also one to the attorneys for appellees requesting that, for his convenience, the cause be set down for hearing on Friday October 5, 1906, which would be the fifth day of the term. Appellees' attorneys responded with a letter dated September 28th, but which was not received by Mr. Collins until Monday morning, October 1st, stating...