Lawyer v. Carpenter

• Decision Date: 05 November 1906
• Parties: LAWYER v. CARPENTER.
• Court: Arkansas Supreme Court

97 S.W. 662

LAWYER v. CARPENTER.

Supreme Court of Arkansas.

November 5, 1906.

Appeal from Arkansas Chancery Court; Jno. M. Elliott, Chancellor.

Action by W. N. Carpenter against W. K. Lawyer to quiet title to certain land. After judgment by default based on constructive service, defendant Lawyer, after more than a year, but within two years, filed a motion to set aside the judgment and retry the case, and from an order denying the motion, Lawyer appeals. Reversed and remanded.

Jno. F. Park, for appellant. H. A. Parker, for appellee.

HILL, C. J.

On 9th of June, 1900, Carpenter brought suit in Arkansas county chancery court against Lawyer, in which he alleged that he was the owner of a tract of land therein described, and that Lawyer was claiming title to it, but had no title thereto, and that his claim was a cloud on plaintiff's title, and prayed for its cancellation. Constructive service was had upon Lawyer as a nonresident, and the suit progressed to judgment in Carpenter's favor on the 9th of August, 1900, canceling Lawyer's title. Within less an two years, but over one year, Lawyer filed a motion to set aside the judgment and retry the case, tendered a cost bond and answer showing a meritorious defense. The answer in substance denied Carpenter's title and set up title in Lawyer under a donation deed and seven years' adverse possession, and alleged that he was in actual possession through a tenant at the time of the rendition of the decree.

The question presented is what time after judgment on constructive service, where title to real estate is quieted, has the defendant to appear and retry the case on tendering an answer showing a meritorious defense. The act of March 4, 1887 (Acts 1887, p. 53; section 6259, Kirby's Dig.), provides for reopening judgments rendered on constructive service where defendant has not appeared within two years. This act may be dismissed from this case, for it is general in its terms and is intended to apply to all judgments rendered on constructive service, except otherwise specially provided for, whereas the question here is which of several statutes relating to a particular subject — quieting titles — governs. A general law does not apply where there is another statute governing the particular subject, irrespective of the date of either the general or particular law. Neither repeals the other. The particular legislation covers the narrower field where it is applicable. Dunn v. Ouachita Valley Bank, 71 Ark. 135, 71 S. W. 265; Mills v. Sanderson, 68 Ark. 130, 56 S. W. 779; Ex parte Morrison, 69 Ark. 517, 64 S. W. 270; Chamberlain v. State, 50 Ark. 132, 6 S. W. 524; State v. Kirk, 53 Ark. 339, 13 S. W. 925; Thompson v. State, 60 Ark 59, 28 S. W. 794.

Passing then to acts on the particular subject of quieting and confirming titles, three are found. Sections 661, 675, Kirby's Dig., relating to confirming tax titles and other titles acquired in involuntary proceedings. These statutes are particular to this subject and are not in this case. See Ex parte Morrison, 69 Ark. 517, 64 S. W. 270. That leaves for consideration the act of March 26, 1891 (Acts 1891, p. 132), the second section of the amended act of April 4, 1893 (Acts 1893, p. 204), found as chapter 131, Kirby's Dig., entitled "Quieting Titles"; and Act March 28, 1899 (Acts 1899, p. 134), part of the chapter on "Confirmation of Titles," and found in sections 649, 660, Kirby's Dig. An examination of the statute of 1891-1893 will show that the subject-matters threof are covered in the later statute. The first section (6517, Kirby's Dig.) gives an action to quiet title to real estate to a person, whether in actual possession or not, against an adverse claimant, whether in actual possession or not. The next section (6518), which was the amendment of 1893, requires the suit to be brought at law whenever the adverse claimant is in actual possession. Where it is a contest for the possession of real estate, there would be a right of trial by jury, and hence this provision merely takes out of the chancery court a case which it could not entertain. Whether this was a cumulation of remedies at law to those provided in the chapter on ejectment is not now important. The remainder of this section provides a suit in equity where the plaintiff is in possession, or the land is wild and unoccupied, and permits a joinder of several tracts and claimants, and provides for separate trial where the issues are separate or joint trial, where the issues are substantially the same, and gives the court authority to issue appropriate orders and to apportion the costs equitably. The next section relates to procedure of summoning the defendants. The statute of 1899 gives to a person claiming to own land an action to confirm and quiet his title where it is wild or improved or in his possession. Section 649.

The next section provides that the action shall be in the chancery court and must be upon petition showing prima facie title in plaintiff, and that there is no adverse occupant of the land, and requires him to bring in all adverse claimants. The next section (651) permits...