Foohs v. Bilby

• Decision Date: 09 May 1910
• Citation: 129 S.W. 1104
• Parties: FOOHS v. BILBY.
• Court: Arkansas Supreme Court

129 S.W. 1104

FOOHS v.BILBY.

Supreme Court of Arkansas.

May 9, 1910.

Appeal from Circuit Court, Arkansas County; Eugene Lankford, Judge.

Proceedings by J. S. Bilby against John Foohs to vacate a judgment.The judgment was vacated, and Foohs filed a motion to set aside the order vacating the former judgment, which was overruled, and an appeal taken.Affirmed.

Proceedings were instituted in the Arkansas circuit court by J. S. Bilby against John Foohs, under section 4431 of Kirby's Digest, to vacate a former judgment of said court.The original suit was brought by Bilby against Foohs in the Arkansas circuit court to recover a lot of staves manufactured from timber cut from land alleged to be owned by Bilby.The judgment of the circuit court was for Bilby, and Foohs appealed to this court.The judgment was reversed and the cause remanded for a new trial.Foohs v. Bilby, 83 Ark. 234, 103 S. W. 386.The case was again brought to this court on appeal, and the judgment of the circuit court, which was in favor of Foohs, was affirmed on May 3, 1909.Bilby v. Foohs, 90 Ark. 297, 119 S. W. 286.

The judgment of the Supreme Court of Arkansas on the first appeal was rendered on the 17th day of June, 1907, and the mandate was filed in the office of the circuit clerk on the 13th day of August, 1907.At the November term, 1907, of the Arkansas circuit court, a judgment was rendered in said cause in favor of Foohs, and the complaint herein was filed by Bilby on September 18, 1909, to vacate that judgment.Prior to this Bilby had appealed to this court from the judgment, and the judgment of the lower court was affirmed on May 3, 1909, as above stated.Bilby had also made a previous application to the court to set aside the judgment, which on his motion was dismissed without prejudice, and the present complaint was filed within one year thereafter.

The ground upon which Bilby sought to vacate the judgment rendered at the November term, 1907, of the Arkansas circuit court was unavoidable casualty which prevented him appearing at the trial, and the complaint also alleged facts which showed that he had a valid cause of action.The complaint was duly verified, and an affidavit was attached to his complaint stating that Foohs had become a nonresident of the state and a warning order was issued.At the November term, 1909, of the Arkansas circuit court, the following judgment was rendered: "Now on this day this cause comes on for hearing, plaintiff appearing by his attorneys.The court finds that this cause is regularly on the calendar for trial, at this term of court, and, same being now reached on the call of the calendar for trial, the court finds that defendant, John Foohs, has been duly served with process of this court for the time and in the manner prescribed by law, and that defendant, John Foohs, and his attorney of record, H. A. Parker, have been each duly notified of the pending of this action, and have actual knowledge thereof, and that the attorney for said John Foohs has submitted a written argument or statement to this court in this cause.After hearing the evidence the court finds that this is a suit to vacate a former judgment of this court rendered at its November term, 1907, on the 13th day of November, 1907, wherein J. S. Bilby was plaintiff and John Foohs was defendant, which judgment is entered in Law Record L, pages 429 and 430, of this court, and further finds that plaintiff herein was represented in said suit by John F. Park, Esq., as attorney of record therein, and that shortly before the rendition of said judgment said John F. Park died, and that said judgment was rendered without the knowledge or consent of said Bilby, the plaintiff herein, or any for him, and without knowledge on the part of said Bilby that said Park had died, and plaintiff therefore without representation therein, and that said Bilby was prevented by unavoidable casualty and misfortune from appearing and prosecuting said cause or being represented therein as he was by right entitled to do.The court further finds that the said Bilby, the plaintiff herein, had and now has a meritorious and valid cause of action in said suit, and that the aforesaid judgment ought to be vacated and set aside and said Bilby permitted to prosecute same, and that for above and other reasons same should be vacated and the prayer of the complaint herein granted.Therefore, the court being well advised, it is considered, ordered and adjudged that said judgment hereinbefore referred to, to wit, the judgment in the case of J. S. Bilby v. John Foohs, rendered November 13, 1907, and entered in Law Record `L,'pages 429, 430, of this court, be and the same is hereby vacated and set aside, and that the said J. S. Bilby be and he is hereby permitted to prosecute the same as if said judgment had not been rendered, and that the clerk of this court be and he is hereby ordered to reinstate said cause of J. S. Bilby v. John Foohs on the docket of this court, and that said cause of J. S. Bilby v. John Foohs be and the same is hereby set for trial on the first day of the next term of this court."

At the same term of the court, Foohs filed a motion to set aside this judgment, and the court rendered the following judgment: "On this day John Foohs, defendant above named, files his motion to set aside the order of this court rendered in the above-styled cause on November 6, 1909, vacating a previous judgment, and said motion coming on for hearing, and the evidence being heard thereon, the court finds that same should be overruled.Therefore it is considered and adjudged by the court that said motion on this day filed be and the same is hereby overruled, to which action of the court, in overruling said motion, John Foohs excepts and prays an appeal to the Supreme Court, which is by the court granted, to which act of the court in granting an appeal to the Supreme Court the said J. S. Bilby excepts."

Foohs, in his motion to set aside the judgment vacating the former judgment, makes all the former proceedings in the case exhibits to his motion; but he filed no bill of exceptions, and none appears in the transcript.He has brought the case here by appeal.

H. A. Parker, for appellant.Ingram & Coleman and Pettit & Pettit, for appellee.

HART, J.(after stating the facts as above).

It is first contended by counsel for appellant that the judgment in favor of Bilby vacating the former judgment is void because no service in the proceeding was had upon Foohs; but he is precluded from raising this question by the recitals of the record that "the attorney for said John Foohs has submitted a written argument or statement to this court in this cause.""Any action on the part of a defendant, except to object to the jurisdiction, which recognizes the...