Lyons v. Green
| Decision Date | 12 May 1900 |
| Citation | 56 S.W. 1075 |
| Parties | LYONS v. GREEN et al. |
| Court | Arkansas Supreme Court |
Certiorari to circuit court, Hempstead county, in chancery; Rufus D. Nearn, Judge.
Certiorari proceedings by W. T. Lyons against David Green and another. Judgment set aside.
D. B. Sain, for petitioner. W. S. Eakin, for respondents.
This is a petition to quash, on certiorari, a decree of the Hempstead chancery court in the case of David and Harriett Green against D. M. Goodlet, administrator of the estate of H. K. Lyons, deceased, et al. The petitioner, after alleging that he was one of the defendants in that case, sets forth, as grounds for setting aside the decree, that on the 28th day of August, 1897, W. S. Eakin, as attorney for Green and wife, the plaintiffs in the suit, did on August 28, 1897, dismiss the suit before the clerk of the Hempstead court, in vacation, as to W. T. Lyons, petitioner, and that afterwards, on October 14, 1897, the plaintiffs in the suit obtained judgment against petitioner, and had a lien declared upon his land; that the court had no jurisdiction of the person or property of petitioner, as he was not served with notice after the action had been dismissed, nor did he appear in person, nor authorize any one to appear for him, in the action. The return to the writ of certiorari shows that on August 26, 1897, the following entry was made in the case of David Green and Harriett Green, plaintiffs, against D. M. Goodlet, administrator of the estate of H. K. Lyons, deceased, et al., to wit: Also, the following: After this the decree was rendered against the petitioner, W. T. Lyons, on the 14th day of October, 1897, which he here seeks to annul. It is not denied that petitioner had no other or further notice after these entries. In other words, the only service upon him was that had when the suit was begun. The respondents insist that the petitioner is not entitled to the relief sought, for three reasons, viz.: "(1) He was guilty of laches in not applying sooner for relief by this proceeding; (2) his proper remedy is by appeal from the judgment of which he complains; (3) the court of equity rendering the judgment had complete jurisdiction of his person and property at the time the judgment was rendered." Considering these in the order presented by counsel, we are of the opinion:
1. That the petitioner is not barred by laches. Even if petitioner had knowledge of the judgment from the date of its rendition, a delay of about 13 months before seeking to have same set aside would not subject him to the charge of laches, when it appears that no efforts had been made in the meanwhile to enforce the judgment. The petitioner, we observe, gave notice that he would apply to have the judgment quashed some 14 days before the owners of the judgment advertised the land for sale under execution. Petitioner could hardly be said to have shown any sort of acquiescence in a judgment which he sought to avoid even before any effort was made by the owners thereof for its enforcement. "What delay must be regarded as so unreasonable as to preclude the complainant from resorting to this writ" is not settled by the authorities. Each case must depend upon its own peculiar facts. Respondent cites us Keys v. Board, 42 Cal. 252, where a delay of one year was held, under the circumstances of that case, to be fatal. But the facts of that case were so different from those at bar as to render it valueless as an authority for respondent's contention. The rule, as stated by this court, "is to refuse the writ when the party seeking it fails to show that he has proceeded with expedition after discovering that it was necessary to resort to it." Black v. Brinkley, 54 Ark. 375, 15 S. W. 1030. The application of the...
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