Layton v. Linton

• Decision Date: 18 June 1923
• Docket Number: 58
• Citation: 252 S.W. 21,159 Ark. 529
• Parties: LAYTON v. LINTON
• Court: Arkansas Supreme Court

252 S.W. 21

159 Ark. 529

LAYTON v. LINTON

No. 58

Supreme Court of Arkansas

June 18, 1923

Appeal from Marion Chancery Court; Ben F. McMahan, Chancellor affirmed.

Decree affirmed.

J C. Floyd, for appellant.

The judgment was obtained by fraud. Linton misled Childs, his attorney, and Layton, his bondsman, to believe he was not going to seek redress against them, and the judgment should be set aside. 15 R. C. L., pars. 214, 216; 51 L. R. A. 873; 23 Cyc. 1028 (h). Pelham v. Moreland, 11 Ark. 442; 15 R. C. L. 764, par. 216; 765, par. 217; 5 Pomeroy's Equity Jurisprudence, 2070-1. The summary judgment rendered on motion of Linton's attorneys at the conclusion of the trial against Layton, without notice, is void. C. & M. Digest, 6250, 6252, 6257; 23 Cyc. 770 (c); 3 Ark. 488; 5 Pomeroy's Equity Jurisprudence, 4703-4, pars 2084, 2085. No attorney represented Layton, and no notice or process was served upon him. 5 Pomeroy's Equity Jurisprudence, 2086, 2092, 2093; 30 L. R. A. 235, note 111. The court was without jurisdiction of the cause, which had not been properly transferred (C. & M. Digest, 2185); 23 Cyc 993-4,note 68; 5 Pomeroy's Equity Jurisprudence, 2084-2087; 33 Ark. 778; 73 Ark. 333; 84 S.W. 77. Only a question of law determining the amount of damages was involved, and the chancery court acted without jurisdiction, and its judgment is void. C. & M. Digest, § 2185; 65 Ark. 503; 108 Ark. 147; 47 S.W. 407; 56 Ark. 391, 19 S.W. 1058; 113 U.S. 550; 2 Pomeroy's Equity Jurisprudence, pars. 679, 681, 735. Appellant is entitled to a permanent injunction against the collection of the void judgment.

Sam Williams, for appellees.

There was no agreement between Linton and Layton, Childs or his attorney, Owen, that no judgment should be taken against Layton, nor is it claimed that no defense was made because of such alleged agreement. 26 C. J. 1137, § 57; 95 Ark. 375; 74 Ark. 46; 71 Ark. 305; 31 Ark. 170; 30 Ark. 362; 19 Ark. 522; 8 Ark. 146. Layton knew before the judgment was rendered that Linton was insisting on a judgment against him. No sufficient showing made for vacation of judgment. C. & M. Digest, 6290, 6293; 139 Ark. 408; 120 Ark. 255; 138 Ark. 403; 102 Ark. 252; 104 Ark. 449; 94 Ark. 347; 90 Ark. 44; 84 Ark. 527; 83 Ark. 17; 50 Ark. 458. By signing the bond Layton became a party to the suit, and no further notice to him was necessary. C. & M. Digest, § 4854; 62 Ark. 469; C. & M. Digest, § 534, construed so in 37 Ark. 206; 29 Ark. 208. The cause was properly transferred to equity, and, having jurisdiction, the chancery court rightfully retained it to determine all rights and administer complete relief. 34 Ark. 410; 29 Ark. 612; 99 Ark. 438. Appellant's remedy was by appeal in the other case.

OPINION

HUMPHREYS, J.

A suit in unlawful detainer was brought by W. A. Childs against I N. Linton in the circuit court of Marion County. W. E. Layton was bondsman for W. A. Childs in said action. On motion of I. N. Linton, who had set up certain grounds of equitable relief against Childs and the Erie Ozark Mining Company, the circuit court made an order transferring the cause to the chancery court of said county, where the Erie Ozark Mining Company was made a party. The Erie Ozark Mining Company entered its appearance and filed an answer to the cross- complaint, and also a cross-complaint of its own, asking a cancellation of the original lease given to W. A. Childs, and subleases from him to I. N. Linton and others, upon the ground of forfeiture. W. A. Childs was represented by E. O. Owens and S.W. Woods, regular practicing attorneys at the bar. S.W. Woods testified that he did not appear in the chancery court, after the transfer of the case, because he understood from Owens that I. N. Linton would look alone for relief to the Erie Ozark Mining Company. E. O. Owens continued in the case after the transfer of the cause, and advised Childs, who had moved away, that it was necessary to take depositions to get ready for trial. Childs did not reply to his letters and thereby put him in position to proceed with the case, so he made a statement to that effect to the court, and was permitted to withdraw from the case. No pleadings were filed for Childs in the chancery court. The cause proceeded to a hearing upon issues joined between I. N. Linton and the Erie Ozark Mining Company, which resulted in a rendition of a decree in favor of the Erie Ozark Mining Company against W. A. Childs and I. N. Linton. I. N. Linton then asked and obtained a judgment against W. A. Childs and his bondsman, W. E. Layton, for $ 1,000 in the unlawful detainer suit. An entry appears on the court's docket to the effect that objections were made and exceptions saved to the entry of the judgment, and that an appeal was prayed therefrom to the Supreme Court. Before the judgment was entered, and during the progress of the case, J. C. Floyd, attorney for the Erie Ozark Mining Company, and Sam Williams, attorney for I. N. Linton, advised Layton that Linton was insisting on a judgment against him, and that he had better give the matter some attention.

This suit for a permanent injunction against the enforcement of said $ 1,000 judgment was brought by W. E. Layton to a subsequent term of said court against I. N. Linton, execution creditor, and C. A. Willingham, sheriff of Marion County, upon the four following alleged grounds: First, that I. N. Linton agreed with W. E. Layton, or with W. A. Childs, or his attorney, E. O. Owens, that no judgment would be taken against them, but that he would look alone to the Erie Ozark Mining Company for redress; second, that the judgment rendered against W. E. Layton was without notice and void; third, that the chancery court had no jurisdiction of the cause in which said $ 1,000 judgment was rendered; fourth, that the chancery court was without jurisdiction, after the equitable issues were eliminated, to render a judgment in a suit for unlawful detainer, which was purely legal in nature.

E. O. Owens, attorney for Childs, testified that I. N. Linton stated to him, in front of the bank in Yellville, that he was not particularly after Mr. Layton, that he was after the Eric Ozark Mining Company. He admitted, however, that this statement did not influence him to withdraw from the case, and explained that he withdrew from the case because Childs would not write to him concerning it, so that he could prepare for the trial.

Mr Layton testified that, during the pendency of the suit, I. N. Linton came to the bank and told him that he had matters so arranged as to give him no trouble on the bond; that, in reliance upon the statement, he made no preparation for a defense and took no further interest in the case. I. N. Linton testified that he did not make the statement attributed to him...