Hallum v. Dickinson

• Decision Date: 14 March 1891
• Citation: 15 S.W. 775
• Parties: HALLUM v. DICKINSON.
• Court: Arkansas Supreme Court

Page 775

15 S.W. 775

HALLUM v. DICKINSON.

Supreme Court of Arkansas.

March 14, 1891.

Appeal from circuit court, Lonoke county; JOSEPH W. MARTIN, Judge.

John Hallum, pro se. Thos. C. Trimble, for appellee.

BATTLE, J.

John A. Only, trustee, etc., instituted an action of replevin against Edward Fegan, trustee. etc., and John A. Dickinson, in the circuit court of Shelby county, in the state of Tennessee, to recover possession of certain household furniture and other property. In order to commence the suit, he and John Hallum executed a bond in the sum of $5,200, payable to Dickinson and Fegan, and conditioned to be void if Only abided by and performed the judgment of the court in the action. The property sued for was delivered to Only. On the trial Dickinson recovered a judgment against Only, and, Only waiving the right to return the property, judgment was rendered against him and Hallum on their bond for the value of it. Only then moved for a new trial, which was denied, and he and Hallum appealed to the supreme court of Tennessee. They then filed in the supreme court a transcript of the pleadings, proceedings, and judgment in the action. On the 6th of April, 1872, the cause having been heard on the transcript, the supreme court of Tennessee rendered a judgment in favor of Dickinson against Only and Hallum. On this judgment this action was brought by Dickinson against Hallum. Hallum's defenses to the last-mentioned action were (1) nul tiel record; (2) the statute of limitation of 10 years; and (3) fraud in the procurement of the judgment sued on.

1. A copy of the transcript filed in the supreme court of Tennessee, except the evidence set out therein, and of the judgment sued on, authenticated by the certificates of the clerk and chief justice of the supreme court in due form, was produced and read as evidence in the trial of this action. There being no evidence to the contrary, it showed that the supreme court had jurisdiction of the subject-matter of the action of replevin. Nunn v. Sturges, 22 Ark. 389; Lockhart v. Locke, 42 Ark. 17; Pringle v. Woolworth, 90 N. Y. 502; Bissell v. Wheelock, 11 Cush. 277; Buffum v. Stimpson, 5 Allen, 591; Stewart v. Stewart, 27 W. Va. 167. The taking of the appeal, and the filing of the transcript, gave it jurisdiction of the persons of Only and Hallum. The omission to copy the evidence contained in the transcript filed in the supreme court was immaterial, and did not prejudice Hallum, as its only object or effect was to enable the supreme court to ascertain whether there was evidence to sustain the judgment of the Shelby circuit court, or reversible error in the admission or rejection of evidence by that court.

But it is said that the transcript read as evidence in the trial of this action shows that two actions were brought by Only against Dickinson and Fegan, and fails to show any pleadings or process in the action in which the judgment sued on was recovered. The ground for this contention is that the transcript shows the rendition of a judgment by default for property in favor of Only against Dickinson and Fegan, and fails to show that it was ever set aside. Hallum insists that the presumption is that the judgment by default was the termination of the suit in which it was rendered, and that all that follows in the transcript was a copy of the proceedings in another action. But this is not true. The certificate of the clerk to the transcript shows that there was only one suit, and the transcript, in other ways, bears evidence of the same fact.

The judgment by...