Hare v. Ft. Smith & W. R. Co.

• Decision Date: 13 May 1912
• Citation: 148 S.W. 1038
• Parties: HARE v. FT. SMITH & W. R. CO.
• Court: Arkansas Supreme Court

148 S.W. 1038

HARE v. FT. SMITH & W. R. CO.

Supreme Court of Arkansas.

May 13, 1912.

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Action by Ella Hare, by her guardian, A. A. McDonald, against the Ft. Smith & Western Railroad Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed, with leave to plaintiff to amend.

Winchester & Martin, of Ft. Smith, for appellant. C. E. & H. P. Warner, of Ft. Smith, for appellee.

FRAUENTHAL, J.

This is an action brought by the guardian of Ella Hare, a person of unsound mind, seeking to vacate a judgment rendered in a suit brought by the Ft. Smith & Western Railroad Company, condemning for its use for railroad purposes certain land in Sebastian county alleged to be owned by her. This proceeding was brought in the court rendering said judgment in pursuance of subdivision 5 of section 4431, Kirby's Digest. A complaint was filed herein in accordance with section 4433 of Kirby's Digest by said guardian of Ella Hare as plaintiff, and against said Ft. Smith & Western Railroad Company as the sole defendant.

The complaint makes allegations substantially as follows: In 1901 said defendant railroad instituted proceedings in said court to condemn for its use for railroad purposes said land. In the condemnation proceedings a number of persons were made defendants, amongst whom was said Ella Hare, and one Matt Gray, as administrator of the estate of Mary A. Hare, deceased, all of whom were duly and legally served with process. None of the defendants therein made answer or other pleading, except said Matt Gray as said administrator, who filed an answer in which he alleged that said land was owned by the estate of said Mary A. Hare. A jury was thereupon impaneled to assess the amount of damages by reason of the appropriation of said land. They returned a verdict for $3,000 in favor of the defendants in the condemnation proceeding, and this award was paid to the administrator of the estate of Mary A. Hare. Ella Hare, who is now over 40 years old, has been a person of unsound mind ever since her infancy, and on October 26, 1894, she was adjudged to be of unsound mind by the probate court of said county. In said condemnation proceedings no mention was made of the fact that she was a person of unsound mind, no statutory guardian appeared for her, and no guardian ad litem was appointed to defend for her. No error appears in the pleadings, record, or trial of said condemnation proceedings. It is not alleged that the Ft. Smith & Western Railroad Company did not have the right to condemn the land, nor that the amount awarded by the jury as damages for the taking thereof is inadequate or unjust. It is alleged that Ella Hare was the sole owner of said land, and it is only claimed that the entire sum so awarded was paid to the said Matt Gray as administrator of the estate of Mary A. Hare, her mother, when it should have been paid only to the said Ella Hare, the true owner. In the complaint the plaintiff asks that the judgment rendered in said condemnation proceedings be vacated as to Ella Hare, and that, as her guardian, he have judgment against said railroad company for the sum of $3,000, the value of the land, with interest from the time the same was taken. In the copy of the judgment exhibited with the complaint, it appears that the court did order and adjudge "that the plaintiff take, have, and hold possession of said property above described, for its own use and that of its assigns and successors, for the purposes aforesaid forever. And it is also adjudged that defendants have and recover of plaintiff the sum of $3,000 and costs. And it is ordered that the sum of $____ deposited in court be paid over to defendants, or to such one or more of them as shall establish his or their right to receive the same." To this complaint the defendant interposed a demurrer, upon the ground that it did not state facts sufficient to constitute a cause of action, and also because there was a defect of parties. The court sustained the demurrer upon the ground, as it is stated in argument, that there was a defect of parties; and, the plaintiff electing to stand upon the complaint, a judgment was rendered dismissing it.

The sole question for determination upon this appeal is this: Are the parties named as defendants in the condemnation proceedings instituted by the railroad company resulting in a judgment necessary parties to this action seeking to vacate that judgment?

The complaint seeks to vacate as to Ella Hare a judgment rendered at a former term of the court in said condemnation proceedings, which was instituted against a number of persons as defendants, amongst whom was Ella Hare. This action is taken under the fifth subdivision of section 4431, Kirby's Digest, which provides: "The court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order for erroneous proceedings against an infant, married woman or person of unsound mind where the condition of such person does not appear in the record nor the error in the proceedings." From the allegations of the complaint, it appears that Ella Hare was at the time of the institution of said condemnation proceedings and the trial thereof a person of unsound mind, and her condition does not appear in the record, nor the error in the proceedings. Accordingly, these allegations are sufficient to make out a prima facie showing for vacating said judgment. Richardson v. Matthews, 58 Ark. 484, 25 S. W. 502; Jones v. Pond & Decker Mfg. Co., 79 Ark. 194, 96 S. W. 756; Knights of Maccabees v. Gordon, 83 Ark. 17, 102 S. W. 711. But the existence of the truth of the allegations that Ella Hare was adjudged to be of unsound mind and was laboring under that disability at the time of the institution of said condemnation proceedings, and also of her cause of action and right to have and recover the award of damages assessed for the property condemned, could be denied by any party to said judgment who is now interested in the subject-matter of this action, and, when so denied, it would devolve upon the plaintiff in this proceeding to sustain by evidence her complaint in this respect. By section 4434 of Kirby's Digest it is provided that a "judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered, or, if the plaintiff seeks its vacation, that there is a valid cause of action."

It follows that a former judgment cannot be set aside simply upon the motion or complaint if the allegations therein are denied by answer; and therefore all persons interested in the subject-matter of the action should be made parties to the proceeding to vacate such judgment, in order that they may have the opportunity to make such answer and defense thereto. For this reason every person having an interest that may be injuriously affected by the annulment of the judgment should be a party to the action or proceeding seeking to vacate it. Ordinarily all the parties to the original suit will be affected by the annulment of the judgment rendered therein, and therefore, as a general rule, it has been universally held that "in an action to annul the judgment all the parties to the proceeding sought to be avoided are necessary parties." 15 Enc. Pl. & Pr. 257; 1 Black on Judgments, § 346; 23 Cyc. 951; Sloan v. Whiteman, 6 Ind. 434; Douglay v. Davis, 45 Ind. 493; Day v. Goodwin, 104 Iowa, 374, 73 N. W. 864, 65 Am. St. Rep. 465; Haggerty v. Phillips, 21 La. Ann. 729; Weidersum v. Nauman, 62 How. Prac. (N. Y.) 369; York v. Cartwright, 42 Tex. 136. The reason for this rule is that ordinarily the parties to the former suit are interested, not only in the subject-matter of such suit, but also in the action seeking to vacate the former judgment, and will be materially affected by the annulment thereof.

The question as to whether or not all the parties to the suit in which the former judgment was rendered are necessary parties to the action or proceeding seeking to vacate such judgment is determined by the same principles applicable to actions generally. By section 6006 of Kirby's Digest it is provided that "any person may be made a defendant who has or claims an interest in the controversy adversely to the plaintiff, or who is a necessary party to a complete determination and settlement of the question involved in the action"; and by section 6011 of Kirby's Digest it is provided that "the court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights, but, when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them brought in." These provisions furnish a criterion for determining when a court will require persons to be made parties to an action before it. If the parties before the court are the only persons who have an interest in the controversy that is actually involved in the action or proceeding then pending before it, or if a final judgment can be made without affecting the rights of...