Gleason v. Boone

• Decision Date: 01 May 1916
• Docket Number: 366
• Citation: 185 S.W. 1093,123 Ark. 523
• Parties: GLEASON v. BOONE
• Court: Arkansas Supreme Court

185 S.W. 1093

123 Ark. 523

GLEASON v. BOONE

No. 366

Supreme Court of Arkansas

May 1, 1916

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

O. M Young and Geo. C. Lewis, for appellant.

1. Appellant literally complied with Kirby's Digest, § 6259 and was entitled to relief. 85 Ark. 277. No personal service was had, he had no notice and no bond was filed as provided by section 6254, Kirby's Digest. See also Ib § 4293; 74 Ark. 477.

2. The land was sold at an inadequate price, at a sacrifice. Until confirmation the entire proceedings are in fieri and a redemption should have been allowed a nonresident defendant without notice. This was a direct attack for want of proper service.

R. E. Wiley, for appellee.

There was no error in refusing to vacate the decree, nor in refusing the offer to redeem. There was no right of redemption; his offer came too late. There must be some point of time when defendants rights are foreclosed. The law fixes the time as the date of the sale. 66 Ark. 490; 105 Id. 40; 86 Id. 255, 258. The recitals in the decree show that a bond was filed. 57 Ark. 49, 54. No meritorious grounds were shown for vacating the decree or sale. 36 Ark. 591, 605; 90 Id. 156. Mere inadequacy of price is not sufficient. 77 Ark. 216; 65 Id. 152; 108 Id. 366; 111 Id. 158, 166. Kirby's Dig., § 4923 only applies to resident defendants. The chancellor had the parties before him; heard all the evidence and found that appellant made no showing to entitle him to relief against the decree or the sale. On the whole record the judgment is right. 103 Ark. 502.

OPINION

MCCULLOCH, C. J.

The plaintiff, Mrs. Poynter, instituted an action in the chancery court of Arkansas County to foreclose a mortgage on real estate executed by L. J. Miller and his wife, Irene Miller. The amount of the original mortgage debt was $ 400, and with interest accrued up to the date of the decree amounted to $ 526.91. The action was against L. J. Miller and his wife and certain junior lienors, and against appellant, John C Gleason, who was a subsequent purchaser from Miller. Appellant was a nonresident of the State and was duly summoned by publication of a warning order, an affidavit and proof of his nonresidency having been filed in the action. The other defendants were personally served with summons. The plaintiff complied with the statute concerning judgments and decrees against nonresident defendants and a final decree was entered in the cause foreclosing the mortgage and directing sale of the land by a commissioner of the court. The sale was subsequently made by the commissioner, appellee John H. Boone being the highest bidder and becoming the purchaser at the sale, and the report thereof was made at the September term, 1915, of the chancery court. At that term of the court, which was within twelve months of the date of the original decree, and before the confirmation of the sale, appellant appeared by attorney and filed a petition to vacate the original decree and for retrial of the action. The petition contained no statement of facts tending to show a defense to the original action, and the court, after hearing the petition, refused to vacate the original decree. It does not appear from the record that the motion for a retrial of the cause was heard by the court.

At the same time appellant filed exceptions to the commissioner's report of sale on the ground that no notice of the sale was served on him, and that the land was sold for an inadequate price. He tendered in court the amount of appellee's bid and asked that appellee be required to accept the same in redemption of the lands from the sale. The court heard the exceptions upon affidavits concerning the market value of the land and entered a decree overruling the exceptions and confirming the sale. An appeal has been duly prosecuted to this court.

The court did not err in refusing to vacate the original decree. The statute provides that a judgment defendant, who has been constructively summoned, "may at any time within two years, and not thereafter, after the rendition of the judgment appear in open court and move to have the action retried; and security for the costs being given, such defendant or defendants shall be permitted to make defense and thereupon the action shall be tried anew as to such defendant or defendants as if there had been no judgment, and upon the new trial the court may confirm, modify or set aside the former judgment and may order the plaintiff in the action to restore to any such defendant or defendants any money of such defendant paid to them under such judgment." Kirby's Digest, section 6259. It has been repeatedly held by this court that such defendants "have no right, however, to have the former judgment, meanwhile, vacated on motion. It remains until the case is retried, to be then confirmed, modified or set aside." Porter v. Hanson, 36 Ark. 591; Pearson v. Vance, 85 Ark. 272, 107 S.W. 986; West v. Burks, 90 Ark. 156, 118 S.W. 397. The sale resulted from the decree, and since it was improper for the court to set aside the original decree before a retrial of the cause on its merits its necessarily follows that it would not have been...