Grimes v. Jones

• Decision Date: 29 March 1937
• Docket Number: No. 4-4572.,4-4572.
• Citation: 103 S.W.2d 359
• Parties: GRIMES v. JONES et al.
• Court: Arkansas Supreme Court

103 S.W.2d 359

GRIMES v. JONES et al.

No. 4-4572.

Supreme Court of Arkansas.

March 29, 1937.

Appeal from Benton Chancery Court; Lee Seamster, Chancellor.

Suit by J. W. Grimes against Ida A. Jones, wherein the defendant filed a counterclaim, and Ruth Jones Grimes intervened. From the decree, the plaintiff appeals.

Affirmed.

Earl Blansett and W. N. Ivie, both of Rogers, for appellant.

D. B. Horsley, of Pawhuska, Okl., Hugh C. Jones, of Hominy, Okl., and John W. Nance, of Rogers, for appellees.

GRIFFIN SMITH, Chief Justice.

Rufus C. Jones, many years after his marriage to Ida A. Jones, purchased 20 acres of land which he and his wife were occupying at the time of his death in 1922.

In 1908 they executed a joint or reciprocal will, under the terms of which the survivor was to take all property, both real and personal. The husband predeceased the wife, and she became executrix of the estate. Money had been borrowed by Rufus C. Jones from the First National Bank of Rogers, and this obligation remained unpaid when he died. The claim was not filed with the executrix, or with the probate court, nor was it in any manner urged against the estate within the period of limitation.

On September 23, 1926, after the debt had become barred, Mrs. Jones executed her note, payable to E. F. Jackson, president of the bank, in substitution of her husband's debt of $1,000. She also gave a mortgage on the home place. The bank became insolvent, and Jackson died. On November 5, 1931, Mrs. Jones borrowed $1,000 from J. W. Grimes, appellant herein. This loan was made for the express purpose of taking up the Jackson bank note. The home property, released from the prior mortgage, was again pledged. In January, 1933, interest was in default, and this was evidenced by another note, issued by Mrs. Jones to Grimes for $100. Principal and interest amounted to $1,297.08 as of April 10, 1934, and later suit was filed.

Alleging in a cross-complaint that the will was void, Mrs. Jones asked that the notes and mortgage be canceled. In support of this contention, she alleged that after the will was executed in 1908, Rufus C. Jones formally adopted Mildred Ruth Smith, who subsequently, through marriage, became Ruth Jones Grimes, one of the appellees herein.

Ruth Jones Grimes intervened in the litigation, claiming that she was adopted by Rufus C. Jones at the April (1911) term of the Benton probate court, which was after the wills had been made, and thereafter, in legal contemplation, she became a daughter.

When the cause came on for trial, the appellant, J. W. Grimes, filed a motion and petition, protesting action of the court in permitting both the defendant and intervener to change their pleadings after the case was set for trial. Specifically, the objection was that the appellees, under the amended pleadings, would be allowed to introduce an order of the probate court amending, nunc pro tunc, the original order of adoption; that the amending order was made without notice to appellant; that the first order was void ab initio; but, if not void, it could not be attacked collaterally in the chancery court proceeding. The motion was overruled.

Appellant's complaint, seeking judgment and foreclosure, was filed February 18, 1935. The petition for an order, nunc pro tunc, bears date of December, 1935. It recites that at the time Rufus C. Jones petitioned for adoption of Mildred Ruth Smith, each was a resident of Benton county, Ark.; that upon a hearing on the petition, with proof, its prayer was granted and there was an order of adoption; that at such hearing it was shown that both parties were residents of Benton county, but by clerical misprision the order failed to recite the place of residence. The adoption order of 1911 reads: "The court finds from the evidence that Mildred Ruth Smith is a female child of the age of five years; that her parents are dead, and that she has no property."

The order of adoption, after the correction, nunc pro tunc, reads: "From the evidence adduced the court doth find that R. C. Jones filed in this court his petition praying for an order for the adoption to him of the petitioner, Mildred Ruth Simpson, who was then a child of the age of five years; that the petitioner, Mildred Ruth Grimes and the said Mildred Ruth Smith are one and the same person; that at the time said petition was filed and acted upon by this court both the said R. C. Jones and the said Mildred Ruth Smith were resident citizens of Benton county, Arkansas, and that evidence of these facts was adduced upon the hearing of said petition in this court, and this court so found from said evidence that this court made and entered of record an order and judgment adopting the said Mildred Ruth Smith to the said R. C. Jones, which said judgment appears of record in the office of the clerk of this court in record J at page 329; that by clerical misprision the record entry of said order and judgment does not recite the finding of the court that the said R. C. Jones and the said Mildred Ruth Smith were resident citizens of Benton county, Arkansas, and therefore said order and judgment should be corrected so as to recite said findings. It is therefore by the court considered, ordered and adjudged that the petition of the petitioner herein be and the same is granted, and that the clerk of this court be and he is hereby directed to enter now for then the following corrected order and judgment: `Now on this day is presented to the court the petition of R. C. Jones to adopt Mildred Ruth Smith, and from the evidence adduced the court finds that the petitioner, R. C. Jones and the said Mildred Ruth Smith are each resident citizens of Benton county, Arkansas; that the said Mildred Ruth Smith is a female child of the age of five years; that her parents are dead, and she has no property.'"

This order and judgment was introduced in evidence in the chancery court, and testimony as to the manner in which it was procured was heard. County and probate Judge David Compton was a witness and said that he remembered something about the hearing on the nunc pro tunc matter; that the petition, notice, and the affidavit of Mrs. Ida A. Jones were...