Ingram v. Raiford

• Decision Date: 17 October 1927
• Docket Number: 229
• Citation: 298 S.W. 507,174 Ark. 1127
• Parties: INGRAM v. RAIFORD
• Court: Arkansas Supreme Court

298 S.W. 507

174 Ark. 1127

INGRAM v. RAIFORD

No. 229

Supreme Court of Arkansas

October 17, 1927

Appeal from Union Chancery Court, First Division; John E. Harris Special Chancellor; affirmed.

Decree affirmed.

Allyn Smith, for appellant.

Gaughan & Sifford, Powell, Smead & Knox and C. E. Wright, for appellee Felsenthal.

OPINION

WOOD, J.

In February, 1923, J. W. Raiford et al. filed a petition in the Union Chancery Court against B. R. McClannahan et al. for the partition of certain lands described in the petition. The action was between the claimants under the will of J. L. Prim and the heirs of his wife, Fannie Primm. Most of the defendants named in the petition were nonresidents among whom was Charlie Ingram. Affidavit for warning order against the nonresident defendant was made on April 28, 1923 and warning order was issued by the clerk on May 9, 1923. On June 30, 1924, the attorneys for the defendant, Clannahan and those claiming to be the attorneys for the other defendants, among them R. H. Ingram and Charlie Ingram, filed a motion suggesting the disqualification of the regular chancellor. On the same day the regular judge certified his disqualification, and, as the record recites, "the clerk of said court called an election for the purpose of electing a special judge to hear said cause, and, said election being duly had in the manner prescribed by law, John E. Harris was duly elected as special judge, and took the oath of office and duly qualified as provided by law." The record further recites: "Thereupon it was mutually agreed by and between the parties litigant that the said John E. Harris should preside as special judge in said cause," and the record of the decree further recites that the cause was submitted and judgment in partition rendered on that day by John E. Harris, special chancellor. The decree concludes with the recital that the court retains jurisdiction for the purpose of receiving the reports of the master, the receiver and the commissioners appointed to make partition of the lands. Thereafter, on January 27, 1925, the chancery court, through its special chancellor, John E. Harris, entered what is designated "a supplemental decree," in which it is recited "that all the parties to the cause received due notice of said hearing and were represented by their respective counsel."

The court, after finding that all of the defendants, including R. H. Ingram and Charlie Ingram, were tenants in common of an undivided interest in the lands, leases, money and other property, which were the subject of the controversy, and that the respective interests of the defendants were not the subject of litigation in the case, modified its former decree of June 30, 1924, so as to adjudge that all of the defendants were owners of an undivided one-half interest in the property as tenants in common and were entitled to receive their proportion of the funds, and directed the receiver to pay the same over to their attorneys, Marsh & Marlin. The supplemental decree further recites: "The court finds from the evidence adduced at the trial of said cause and by admission of all the parties hereto in open court, that the lands herein involved and particularly described in the original decree are not susceptible of partition in kind among the parties litigant, and that it would be impracticable and inequitable to make such partition; and it is therefore ordered, adjudged and decreed that said lands be sold at public outcry to the highest and best bidder, on a credit of three months, after the same has been advertised for a period of thirty days by four weekly insertions in some paper," etc. The court then appointed the receiver as commissioner to make the sale.

The following decrees were entered prior to the decree from which these appeals come, to-wit: Decree of partition in the cause was rendered June 30, 1924, and a supplemental decree at a subsequent term January 27, 1925, and then another decree on May 5, 1925. From the last decree an appeal was taken to this court, and by the decision of this court it was adjudicated "that the several interests of all parties in the lands involved were correctly ascertained and determined in the original decree of June 30, 1924." See Ingram v. Wood, 172 Ark. 226, 288 S.W. 393.

In the meantime the land was sold by the commissioner, and the special chancellor, on October 22, 1925, entered a decree confirming the sale, but later, on January 9, 1926, that decree was set aside on the ground that court was being held on the same day in another county by the regular chancellor, and the court thereupon entered the following order: "Whereupon the court caused to be called all attorneys representing any parties in interest in this cause who appear of record in this court, and it is agreed in open court by all of said attorneys that said sale may and shall be set aside and held for naught, and it appearing that Verta Rowe, one of the heirs and parties in interest in this cause, has died since the institution of this suit, and is survived by a minor or infant, to-wit, Verta Rowe, a minor, it is by the court considered, ordered, adjudged and decreed that Alvin Stevens be and he is hereby appointed guardian ad litem for said Verta Rowe, a minor, and that he be and he is hereby appointed administrator ad hoc of the estate of Verta Rowe, deceased, and this cause is ordered to proceed as to the interest of the said Verta Rowe in the name of Alvin Stevens, guardian ad litem of Verta Rowe, a minor." The decree then recites: "And it appearing to the court, from testimony heretofore taken and from the nature of this cause, and the number of parties involved, that it is impossible to partition the property in kind among the parties in interest without great damage and detriment thereto." The court thereupon reappointed E. W. McGough special commissioner, and directed him to make sale of the property on certain terms therein specified in the decree.

At the March term, 1926, of the First Division of the Union Chancery Court, E. W. McGough, who had been appointed to sell the property, made his report, showing that he had sold the same according to the former orders and decrees of the court, and that the same was purchased by I. Felsenthal for the sum of $ 21,500, he being the highest and best bidder. On the 6th day of March, 1926, certain of the plaintiffs in the original action, among them Elmer Rowe, Jr., as the only surviving heir of Verdie Raiford, by his next friend, E. C. Dunn, through their attorneys, J. R. Wilson and E. L. Compere, filed what they designated a petition to set aside sale, which operated as and should have been designated as exceptions to the report of the commissioner. On the same day C. G. Taylor, a substitute for the original plaintiff, G. A. Dunn, through his attorneys, Joiner & Stevens, adopted the exceptions that had been filed by the other plaintiffs, and, on the same day, Charlie Ingram, through her attorneys, Bailey & Bailey, filed her petition or exceptions to the report of commissioner making sale, asking that the same be set aside. In her petition she set up that all the proceedings in the cause, after the suggestion of the disqualification of the regular chancellor, and all orders and decrees made by the Hon. J. E. Harris, special chancellor, were void, for the reason that, prior to his election as special chancellor, he had been, and at that time was, acting as the attorney ad litem for all nonresident defendants in the case, and was then still so acting for such defendants as had not answered for themselves. She alleged that the commissioner who made the sale had never been by proper order appointed as one of the commissioners to make partition of the property; that the commissioners appointed to make partition were M. C. Wade, Berry Davis and J. C. Kinard. She alleged that she was at all times, up to October 9, 1925, a minor, being under eighteen years of age, and that no guardian of any sort or character had ever appeared for her in this cause, and on the date last above mentioned she became eighteen years of age, and here and now, within the time allowed by law, disaffirmed and rejected all things heretofore done in her behalf in this cause. She prayed the court would refuse to confirm and ratify the sale, that the same be set aside and annulled, and for such other relief as the court might deem just and proper.

The court, on the same day, overruled all exceptions to the commissioner's report of sale, ratified and confirmed the report of sale, and directed the commissioner to make a deed to the purchaser, I. Felsenthal, "to which order, findings and judgment of the court the exceptors and each of them saved their separate and several exceptions, and prayed an appeal to the Supreme Court, which is granted." On the same day the commissioner presented and acknowledged in open court the deed which he had executed to Felsenthal, and which the court duly approved.

On June 7, 1926, the plaintiffs, who had previously filed exceptions to the report of sale, including Elmer Rowe, Jr., a minor, the only surviving heir of Verda Raiford Rowe, by his next friend, E. C. Dunn, filed their motion, praying the court to dismiss with prejudice the further prosecution of their appeal and with prejudice to any further action on their exceptions to the sale. The court thereupon entered an order in which was contained the following recital, to-wit:

"It appearing that the parties have stipulated that the appeal herein will not be prosecuted, and the court being well and sufficiently advised in the premises, doth grant the motion. It is therefore ordered, considered, adjudged and decreed by the court that the petition of E. C. Dunn, Mrs. Nettie Gantt Will Raiford, Ben Raiford, ...