Foohs v. Bilby

• Citation: 129 S.W. 1104,95 Ark. 302
• Parties: FOOHS v. BILBY
• Decision Date: 09 May 1910
• Court: Supreme Court of Arkansas

129 S.W. 1104

95 Ark. 302

FOOHS v. BILBY

Supreme Court of Arkansas

May 9, 1910

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

STATEMENT BY THE COURT.

Proceedings were instituted in the Arkansas Circuit Court by John Foohs against J. S. Bilby, 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. 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.

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 from 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 one for him, and without knowledge on the part of said Bilby that said Park had died, and plaintiff therefore was 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, towit: 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 1st day of the next term of this court."

At the same term of the court John 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.

Judgment affirmed.

H. A. Parker, for appellant.

A motion to vacate a judgment must be filed, if filed at all, within the time prescribed by section 4432, Kirby's Digest; 60 Ark. 550; 33 Ark. 454; 90 Ark. 171. A judgment of the Supreme Court can not be reviewed, altered or modified by an inferior court except for matters arising after the judgment of the Supreme Court was rendered. 33 Ark. 161. The decision of the Supreme Court in a case is the law of that case. 29 Ark. 174; 13 Ark. 103; 14 Ark. 304; 11 Ark. 151; 22 Ark. 176; 44 Ark. 383; 55 Ark. 609; 56 Ark. 171. The fraud contemplated by the statute must be in the proving of the judgment. 68 Ark. 495; 33 Ark. 575; Id. 727; 54 Ark. 539; 73 Ark. 440; 75 Ark. 416; 83 Ark. 508; 90 Ark. 167. Illness of an attorney comes within the purview of section 4431, Kirby's Digest. 85 Ark. 386; 59 Ark. 162. If a party by negligence suffers judgment to go against him, it will not be set aside. 7 Mo. 6; 16 B. Mon. 582. The plaintiff was guilty of laches in applying for a vacation of the judgment. 7 N.Y.S. 490; 13 S. Dak. 648; 84 N.W. 199; 98 Ind. 165; 62 Minn. 18; 63 N.W. 1117; 18 Wash. 387; 51 P. 473; 71 Hun 519; 24 N.Y.S. 1031; 15 Ill. 140; 14 Md. 564; 61 Mich. 35; 27 N.W. 877; 18 N.J.L. 217; 95 N.Y. 135; 74 N.Y.S. 409; 1 Den. 268; 190 Pa. 355; 42 A. 706; 189 Pa. 474; 42 A. 45; 4 R. I. 489; 6 Wis. 164; 110 Wis. 185; 85 N.W. 646; 28 Minn. 132; 9 N.W. 633; 1 How. Pr. 120; 16 Id. 129; 100 Ky. 728; 39 S.W. 414; 61 Cal. 292; 20 Pa. S.Ct. 227; 39 Minn. 315; 40 N.W. 66; 7 Minn. 325; 47 Minn. 245; 49 N.W. 983; 46 Mo.App. 351; 7 Tex. Civ. App. 539; 27 S.W. 687. A party to a suit must give it the attention of a prudent man. 132 N.C. 312; 117 N.C. 482; 79 N.C. 40; 50 A. 537; 107 Ill.App. 175; 169 Ill. 295; 89 Ill. 113; 93 Ind. 583; 60 Minn. 117; 36 S.C. 578; 81 N.C. 293.

Ingram & Coleman and Pettit & Pettit, for appellee.

The record showing of notice is sufficient. 72 Ark. 265; 63 Ark. 513; Kirby's Dig., § 4425; 25 Ark. 60; 80 Ark. 74; 81 Ark. 427; 76 Ark. 534; 77 Ark. 303; 8 Tex. 295; 30 Tex. 53; 69 N.J.L. 343. The truth of record entries can not be attacked by bill of exceptions. 72 Ark. 320; 85 Ark. 50. A record entry showing "continuance by consent" shows an appearance by defendant. 66 Ark. 458. The affidavit is sufficient. Kirby's Dig., § 3150; 162 Ill. 133; 7 Abb. Pr. 322; 57 N.Y.S. 975; 40 A.D. 405; 29 Wash. 576; 70 P. 71; 1 Met. (Ky.) 158; 17 B. Mon. 320; 4 Kan. 104; 8 Colo. 144; 3 S.E. 458; 14 Kan. 463; 95 P. 391; 41 Ore. 518; 69 P. 460; 107 S.W. 605. A delay of thirteen months will not defeat the relief sought. 68 Ark. 205. Any former decision which would have barred appellee should have been pleaded and proved. 65 Ark. 84; 71 Ark. 601. Appellee did not waive his right to have the judgment set aside. 10 Abb. Pr. 448; 37 W.Va. 675; 17 S.E. 184; 93 U.S. 150; 15 Vt. 785; 53 N.Y. 445.

OPINION

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

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 a statement to this court in this cause." "Any action on the part of a defendant, except to object to the jurisdiction, which recognizes the case as in court will amount to a general appearance." 3 Cyc. 504. "Any taking part in the proceedings will constitute a general appearance." 2 Enc. of Plead. & Prac., p. 639.

Counsel now insists that he only appeared for the purpose of objecting to the jurisdiction of the court over the person of Foohs; but the record does not show that he limited his appearance to that single question. On the contrary, it shows...