Chalkey v. Henley
| Decision Date | 10 December 1928 |
| Docket Number | (No. 50.) |
| Citation | 12 S.W.2d 18 |
| Parties | CHALKEY v. HENLEY. |
| Court | Arkansas Supreme Court |
Appeal from Monroe Chancery Court; A. L. Hutchins, Chancellor.
Action by H. G. Chalkey against J. D. Henley, in which defendant filed a cross-complaint. From the judgment, plaintiff appeals. Reversed and remanded, with directions.
Golden Blount and Brundidge & Neelly, all of Searcy, for appellant.
Bogle & Sharp, of Brinkley, for appellee.
On the 11th day of December, 1927, J. G. Howard sold to the appellee 160 acres of land in Monroe county for the sum of $6,400, payable in annual installments; $1,000 to be paid on or before December 1, 1918, $1,000 one year thereafter, another $1,000 one year after that, $1,700 in 1921, and $1,700 in 1922. The land purchased is described as follows: The northeast quarter of section 7, township 3 north, range 2 west, in Monroe county, Ark.
The parties entered into an agreement in writing, showing the sale of the land, the execution of the notes which were to bear interest at the rate of 7 per cent. per annum from date, interest payable annually, and from maturity at the rate of 10 per cent. per annum.
The contract provided: "It is agreed that when the buyer has paid $1,000 of the principal on the contract and the interest due up to that date, he has the option to have this contract annulled and the seller agrees to make a warranty deed to said property, retaining a vendor's lien for the balance of the unpaid purchase price."
It was also agreed that time was of the essence of the contract, and, after the buyer failed to pay, the seller had the option either to declare the entire balance of the purchase price due or rescind the contract. And, in case of rescission, all moneys paid by the buyer were to be taken and retained as rent.
The contract also provided for a lien on one-half of all the crops grown on the land each year during the life of the agreement.
The appellees paid the first $1,000 note and the interest due up to that time, but did not make any further payments. This contract was made in December, 1917, and so far as the record shows, no effort was made to collect until February, 1927, when suit was filed by appellant to foreclose the lien for the purchase money. This was nearly ten years and, according to the contract, the last payment was due in 1922.
Appellees filed answer and cross-complaint, alleging that appellees were entitled to a deed when they paid the first $1,000 and interest, but that the seller failed and refused to execute a deed as provided in the contract. Appellees allege that because of this failure they were damaged in the sum of $5,600 because they had contracted to sell the land for $75 per acre, and in their cross-complaint they ask judgment for the $5,600.
They further allege that the seller agreed to give an abstract showing a good title to said lands, and failed to comply with this part of the contract in that no abstract was furnished.
They further allege that they had made valuable improvements on the land; had expended $2,609.25; and ask that if the court should hold that they are not entitled to the profits, he was entitled to recover the $1,448 which he had paid on the lands, together with the amount or value of the improvements put on the land.
Appellees asked that they have judgment against the appellants, and that the same be declared a lien on the land, and that the land be sold to pay said judgment.
This cross-complaint was filed on the 25th day of April, 1927. The appellant never filed any answer to the cross-complaint, and no steps were taken to bring the case to trial by either party, and on February 6, 1928, one year after the suit was filed, the court dismissed the cause for want of prosecution. The clerk soon thereafter wrote to Mr. Blount at Searcy, Ark., attorney for appellant, that the cause was dismissed, and he also inclosed a copy of the cross-complaint. There is nothing appearing in the record to show that the cross-complaint was dismissed, except appellee's attorney asked that the order dismissing the cause be set aside so that they could go to trial on their counterclaim. This occurred on the 2d day of April, 1928. They asked that the court vacate and set aside the order made at the February term, dismissing said cause, and stated as their reasons that they had filed a cross-complaint and had their witnesses present at court to substantiate the merit of same. The court had overlooked the filing of the cross-complaint and found that they had filed a cross-complaint in February, 1928, and that the cause should not have been dismissed until defendant's cross-complaint was disposed of.
The court thereupon vacated and set aside the order dismissing the cause and gave the defendants an opportunity to prosecute their cause of action upon their cross-complaint, and the defendants announced ready to go to trial on their cross-complaint, and the court thereupon proceeded to trial.
The court found: That complaint was filed in February, 1927, cross-complaint in April, 1927, and that since that time the court had held both regular and adjourned terms of court as follows: February, 1927, regular term; April 4, 1927, adjourned term; April 5, 1927, adjourned term; June 6, 1927, regular term; July 27, 1927, adjourned term; October 3, 1927, regular term; December 12 1927, adjourned term; and February 6, 1928, regular term. And that neither the plaintiff nor any attorney representing him had appeared at either of said terms, and that the cause was dismissed at the February term of court for failure to prosecute. That the plaintiff had failed to plead, answer, or demur to the cross-complaint, and that their time for so doing had long since passed. The court further found that they entered into the contract and gave judgment against the appellant for $1,448, the amount appellee had paid him, and for the sum of $2,925 for repairs, and found that said repairs were completed February 1, 1928. The court further found that defendant had expended $600 in clearing in August, 1918, and paid taxes on the land for 1918 and 1919, amounting to $352.98, and gave judgment for the above amount with 6 per cent. interest, less the rental value of said land from 1918 to date, which he found to be $3,160, leaving a balance due, according to the finding of the court, of $3,849.12.
The court canceled the notes of Henley, and after the evidence had been heard and the cause submitted to the court on defendant's cross-complaint, counsel for plaintiff appeared in court and asked the court to set aside the orders it had made and permit him to file an answer and continue the cause to a future date, which motion the court denied and the plaintiff saved his exceptions.
The motion to set aside the judgment, entered on the 2d day of April, 1928, stated, among other things: That he had never been advised that defendants were ready to try said cause upon the cross-complaint; never been notified to take any depositions, and that on the 14th day of February, 1928, his attorneys were advised by the clerk of the court that the cause had been dismissed for want of prosecution, and advised that the next term of court would be the first Monday of April, 1928. That plaintiff's attorney left Searcy for Clarendon on the 2d of April, but had car trouble and did not reach there...
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