Holman v. Lowrance

• Decision Date: 29 January 1912
• Citation: 144 S.W. 190,102 Ark. 252
• Parties: HOLMAN v. LOWRANCE
• Court: Arkansas Supreme Court

144 S.W. 190

102 Ark. 252

HOLMAN v. LOWRANCE

Supreme Court of Arkansas

January 29, 1912

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

STATEMENT BY THE COURT.

Lowrance first filed a suit in the Pulaski Chancery Court against James Holman for specific performance of a contract to convey a forty-acre tract of land. A decree was entered on September 20, 1910, by default, reciting that "the defendant James Holman, although duly summoned, by virtue of the statute in such cases made and provided, appearing not neither answered nor demurred; the plaintiff announcing ready for trial and the court, after hearing the evidence and being fully advised in the premises, doth find that the plaintiff is the rightful owner of the following described lands etc.," and decreed that defendant should execute a deed to the said described lands upon payment of the purchase money.

On November 29, 1910, appellant filed his complaint to set aside and vacate said judgment, alleging that it was rendered without notice, and that the sheriff's return of service of summons upon him in the first instance was wholly false and that he did not sell nor agree to sell said lands to appellee, and that Hamiter was not his agent for such sale; that he received none of the purchase money therefor, and that the land was of the value of $ 500, instead of $ 120, the price upon and for which the decree was rendered.

Appellee answered, denying the allegations of the complaint, and alleged that service was had, and that the decree was duly rendered upon the evidence adduced. The testimony was conflicting as to whether or not the summons was served, the deputy who made the return swearing positively that he duly served the summons upon appellant by delivering him a copy thereof at Billy Stifel's saloon in Little Rock and told the attorney within three days thereafter that he had served the summons, while the appellant stated that he did not deliver him a copy of the summons at the time and place, as stated, by the officer, nor at all, and denied that he was at that place at all upon the day of the service. Two other witnesses testified that they were with appellant virtually all of that day, but about ten minutes, when he was in the Southern Trust Building, and that he could not have been served with summons at the saloon, where the officer stated the service took place, since he was not there; that if he was served it must have been in the Southern Trust Building, and while they were not present. Another deputy sheriff testified that when the service was inquired about by the attorney in this case, Erber, the deputy, who delivered the first summons, said: "Yes, I served this on him in the back of Billy Stifel's saloon." He said he had served a subpoena on him at Scotts.

The testimony was also in conflict as to whether appellant made a sale of the land, he stating that he did not authorize Hamiter to sell his land, that he did not sell it, and that he had refused to take the money paid by appellee for it, and brought this proceeding to vacate the judgment as soon as he discovered it had been rendered. On the other hand, the testimony tended to show that he agreed to sell the land; that his agent first accepted a five dollar payment from appellee, who took possession of the tract, and until the deed could be made, and that the whole purchase money was paid to his agent.

The chancellor found that the term of court at which the first decree was rendered had expired, and "that the said James Holman had been duly and in due time summoned to appear and answer the complaint filed against him by the said Robert N. Lowrance, and that the return of the sheriff was true, and the decree rendered was in accordance with law and equity," and dismissed the petition to vacate for want of equity. From this decree Holman appealed.

Since the appeals were brought to this court the death of James Holman was suggested, and the causes revived in the name of his administrator and heirs.

Decree reversed, and cause remanded.

Marshall & Coffman, for appellant.

Want of service is ground for vacation of a judgment. 63 Ark. 323. Provision should have been made for the court to say when the money should be paid in. A failure to do so is fatal. 14 A.D. 106; 16 S.W. 1078; 91 P. 92; 118 S.W. 768; 7 S.W. 781; 14 S.W. 453. The decree should be set aside for want of sufficient allegation in the complaint upon which to base a decree. 91 P. 92; 73 Ark. 491; 78 Ark. 158; 150 F. 458; 7 Ark. 445; 20 Ark. 12.

Dan W. Jones and Walker Danaher, for appellee.

The burden is upon appellant to show that the proof does not sustain the court's rulings. 72 Ark. 21; 79 Ark. 263; 5 Ark. 126, 54 Ark. 159; 45 Ark. 240; 44 Ark. 74; 40 Ark. 185; 94 Ark. 115. The question of notice can be determined only by the record. 49 Ark. 397. The remedy is against the officer for a false return. 40 Ark. 141; 39 Ark. 70; 44 Ark. 202; 25 Ark. 313; 36 Ark. 217; 30 Ark. 70; 31 Ark. 609. All the evidence not being in the record the decree will not be disturbed. 63 Ark. 513; 72 Ark. 265; 25 Ark. 60; 55 Ark. 30; 57 Ark. 49; Id. 628; 53 Ark. 476; 48 Ark. 331; 58 Ark. 314

OPINION

KIRBY, J., (after stating the facts).

This proceeding was instituted to vacate a judgment rendered at a former term of court under section 4431 of Kirby's Digest, it being alleged that said judgment was rendered against appellant without notice and obtained by fraud practiced by the successful party, and also that no sale of the lands for a specific performance of which the decree therein was rendered had been authorized or made by appellant, and no money whatever received therefor.

It is necessary, in addition to alleging one of the grounds specified in said section, also to allege a valid defense to the action in which the judgment sought to be vacated was rendered and to make a prima facie proof of the truth of such defense if it is denied, the court being without authority to...