Leaming v. McMillan

• Decision Date: 19 May 1894
• Citation: 26 S.W. 820
• Parties: LEAMING v. McMILLAN et al.
• Court: Arkansas Supreme Court

26 S.W. 820

LEAMING v. McMILLAN et al.

Supreme Court of Arkansas.

May 19, 1894.

Appeal from circuit court, Desha county; T. M. Rodgers, Special Judge.

Application by E. H. Leaming, administrator of Thomas Darling, against one McMillan and others, to set aside a judgment of dismissal. From a judgment denying the same, plaintiff appeals. Reversed.

This is an appeal from a judgment denying an application to set aside a judgment of dismissal of the action of Thomas Darling, now deceased, in which an attachment had been issued and levied upon machinery and fixtures of a mill, the property of McMillan and Dreyfus. After the levy of this attachment, Waterman obtained attachments before a justice of the peace, and had them levied on the same property. At the term of the circuit court to which Darling's attachment was returned, and before any answer to his complaint had been filed, Waterman, on his motion, was made defendant to Darling's suit, and upon his motion, Darling not appearing, his suit was dismissed. A complaint was filed to vacate this judgment of dismissal for unavoidable casualty preventing the plaintiff's appearance, under subsection 7 of section 3909 of Mansfield's Digest. It was shown that Mr. Darling was over 80 years of age, feeble, and unable to leave his home, and had intrusted the prosecution and management of his suit entirely to his attorney, H. F. Auten, who, on account of the severe illness of his wife, was detained at home, and could not attend at the term of the court when the judgment of dismissal was rendered, and was unable to give the case any thought, on account of his anxiety about the condition of his wife. Neither Darling nor Auten learned of the judgment of dismissal till some time in September following the July term of the court, at which the judgment was rendered. The action was brought in Desha county, and Auten and Darling both lived in Little Rock. Waterman was duly summoned to answer the complaint to vacate the judgment of dismissal and to reinstate the cause. Darling died a few days before the term of the court commenced, and the appellant was appointed his administrator, and, not having time to serve a summons before the meeting of the court, the appearance of Dreyfus and McMillan was entered by attorney in fact, but, Waterman objecting to revival, the cause went over a term. A complaint to revive was afterwards filed, Waterman was summoned, and Dreyfus and McMillan were warned by publication to appear at the...