Hall v. Castleberry
| Decision Date | 04 May 1942 |
| Docket Number | 4-6725 |
| Citation | 161 S.W.2d 948,204 Ark. 200 |
| Parties | HALL v. CASTLEBERRY |
| Court | Arkansas Supreme Court |
Appeal from Fulton Chancery Court; A. S. Irby, Chancellor; affirmed.
Decree affirmed.
Denver L. Dudley and Foster Clarke, for appellant.
H A. Northcutt and Oscar E. Ellis, for appellee.
Appellee, Rex Castleberry, brought suit in the Fulton chancery court against J. A. Hall and Josie Hall, his wife making two Jonesboro banks garnishees.
He alleged in his complaint that on April 14, 1936, he obtained a judgment against the Halls in a foreclosure suit No. 1098 in the amount of $ 1,251.65, copy of the alleged judgment was made a part of the complaint.
He further alleged sale of the land under the foreclosure decree; that the proceeds from the sale amounting to $ 900 was duly credited on the judgment, and that a deficit, or balance, of $ 602.70 was left due and unpaid on said judgment.
Appropriate allegations for writs of garnishment were made, writs issued and served and the Citizens Bank of Jonesboro answered that it had $ 825.48 to the credit of J. A. Hall.
April 8, 1941, the Halls appeared specially and filed motion questioning the court's jurisdiction and alleged lack of service on them. Upon a hearing the court overruled this motion, whereupon, appellants answered preserving their right to object to the court's jurisdiction, lack of service on them, and saving their exceptions to the action of the court in overruling their motion, filed answer denying every material allegation of the complaint and also denied that there was any valid deficiency judgment existing against them in favor of appellee Castleberry.
Upon a trial the court found the issues in favor of appellee and this appeal followed.
The record discloses that in 1933 the Halls purchased land from Rex Castleberry for a consideration of $ 1,050. In payment they executed notes in favor of Castleberry secured by a mortgage on the land. Shortly after the execution of these notes, they were sold and assigned to G. T. Cunningham by Castleberry. Upon the failure of the Halls to pay the notes, Cunningham filed foreclosure suit on March 10, 1936, making the Halls and Rex Castleberry, the original mortgagee, defendants. This suit was numbered 1098. On the same day suit was filed Castleberry and the Halls entered their appearance.
The record further reflects that the court below entered a nunc pro tunc order in case No. 1098 as follows: "The above decree in case No. 1098 should have been recorded on April 14, 1936, and is now entered of record nunc pro tunc." And after the recording of the decree under this nunc pro tunc order, there appears this notation on that decree:
The decree entered under the nunc pro tunc order recites that Rex Castleberry as plaintiff was given a judgment against the Halls for $ 1,251.65, foreclosure ordered, and a commissioner appointed to carry out the decree, and this nunc pro tunc order appears to have been made January 27, 1938.
On April 8, 1941, after the present suit had been filed another nunc pro tunc order was made in foreclosure suit No. 1098 in which it is recited: ". . . that this suit was originally filed by and in the name of G. T. Cunningham as plaintiff but that before said cause proceeded to judgment and decree on the date of April 13, 1936, this defendant had been substituted as party plaintiff and the same should have been entered in his name as such plaintiff but that said order of the court then made was not entered of record but should now be entered as of that date.
"It is, therefore, by the court considered, ordered and adjudged and decreed that Rex Castleberry, one of the original defendants herein, be and he is hereby substituted as the plaintiff in place of the original plaintiff, G. T. Cunningham, and that this judgment, decree and order be now entered as of the date of April 13, 1936, the date same was originally made but not then placed of record herein."
It is conceded that in the instant case docketed as case No. 1327, and wherein Rex Castleberry, appellee, appears as plaintiff and J. A. Hall and Josie Hall, appellants, appear as defendants, that no service of summons either personal or constructive, has been had upon either of appellants and that appellants are nonresidents of the state of Arkansas.
There can be no question but that if a valid judgment were obtained against the Halls by Rex Castleberry in the original foreclosure suit No. 1098, the land sold and proper credit given on the decree for the sale price, then the money of the Halls held by the garnishee bank would be subject to be applied on any deficiency judgment that might be due Castleberry from the Halls without personal or constructive service on the Halls. If, however, there were no such valid judgment obtained against the Halls in suit No. 1098, then the garnishment obtained against the Halls must fail for lack of service on the Halls...
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Dean v. Brown
...never be used to make the record speak what it should have spoken, but what it did not in fact speak; * * *' See also Hall v. Castleberry, 204 Ark. 200, 161 S.W.2d 948. The evidence in the case at bar completely fails to show that any evidence was offered at the adoption proceedings in 1911......
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Eiland v. Parkers Chapel Methodist Church, 5-159
...a number of comparatively recent cases, each involving the entry of an order nunc pro tunc, and some of these cases are Hall v. Castleberry, 204 Ark. 200, 161 S.W.2d 948; Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671; Richardson v. Sallee, 207 Ark. 915, 183 S.W.2d 508; Brooks ......
- Hall v. Castleberry