First Nat. Bank v. Dalsheimer

• Decision Date: 12 March 1923
• Docket Number: (No. 218.)
• Parties: FIRST NAT. BANK OF MANCHESTER, IOWA, v. DALSHEIMER et al.
• Court: Arkansas Supreme Court

248 S.W. 575

FIRST NAT. BANK OF MANCHESTER, IOWA, v. DALSHEIMER et al.

(No. 218.)

Supreme Court of Arkansas.

March 12, 1923.

Appeal from Lee Circuit Court; J. M. Jackson, Judge.

Action by A. Dalsheimer and others against the First National Bank of Manchester, Iowa. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Bogle & Sharp, of Brinkley, for appellant.

Jno. I. Moore, of Helena, and Daggett & Daggett, of Marianna, for appellees.

WOOD, J.

The appellant obtained judgment in the circuit court of Lee county against the appellees, which recites as follows:

"Now on this the 11th day of April, 1921, the same being a regular day of the April, 1921, term of said court, this cause coming on to be heard, the plaintiff appeared by its attorneys, Bogle & Sharp, and the defendants, although having been duly served with summons, in manner and form as provided by law, failed to appear, plead, answer or demur, but wholly made default, whereupon the cause is submitted to the court upon the complaint and the original note sued upon, and, after being well and sufficiently advised in the premises, doth find that plaintiff is entitled to recover on said notes the sum of $2,498.23 from said defendants."

Then follows the formal entry of the judgment in favor of the appellant against the appellees.

The present action was instituted by the appellees against the appellant to set aside the above judgment. The appellees in their complaint set out the judgment and alleged that the same was obtained against them by the appellant through fraud, in that appellant represented to the court in which the judgment was rendered "that due and legal summons giving these plaintiffs, defendants in said suit, notice of the pendency of such action, when as a matter of fact neither of said defendants in said action, plaintiffs here, were ever at any time served with proper summons or any notice whatever giving them notice of the pendency of such suit against them on the part of the First National Bank of Manchester, Iowa, defendant herein, but these plaintiffs now further aver and allege that at no time was the notice of the pendency of such suit given them in the manner provided by law, or in any other manner." Then follow allegations which it is unnecessary to set forth at length, but which set out that the defendants had a meritorious defense to the action in which the judgment was rendered against them.

The appellant, in its answer, admitted that it obtained the judgment for the sum alleged. It denied that plaintiffs had no notice of the pendency of the action and that no legal service was had on them, and denied the other allegations of the complaint, and set up that it was an innocent purchaser of the notes upon which the judgment in its favor was rendered. The appellees introduced the original docket entries which show the following:

"Complaint filed and process issued 16th day of November, 1920, service had _____ day of _____, 19__."

The sheriff of Lee county, Arthur Cotter, at the time the original action of the appellant against the appellees was instituted, and whose duty it was to serve the summons, kept a record in his office in which he entered the process for service received by him from the clerk of the circuit court for the period beginning November 15, 1920, and ending January 2, 1921. This record did not show any receipt of summons in the original action by the appellant against the appellees in which the judgment here sought to be set aside was rendered.

The appellees also introduced one Galloway who testified that he was the then sheriff of Lee county. He assumed the duties of the office January 17, 1921. He did not until the April term, 1921, serve a summons on the appellees in the original action by the appellant against them. He did not find the original summons in that case in his office, but a copy thereof, and there was no return service on the copy. He did not know whether the sheriff who preceded him served the summons or not.

The appellant introduced one of its attorneys in the original action, who testified that on the day the judgment was taken, the court was in session, and he asked the court for judgment by default against the defendants in the original action and the court rendered a judgment in accordance with his request, and he prepared the precedent of the judgment as disclosed by the record.

Upon the above facts the court found that the defendants in the original action were not...