McDonald v. Fort Smith & Western Railroad Co.

Citation150 S.W. 135,105 Ark. 5
PartiesMCDONALD v. FORT SMITH & WESTERN RAILROAD COMPANY
Decision Date30 September 1912
CourtSupreme Court of Arkansas

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

Judgment affirmed.

Winchester & Martin, for appellant.

1. The judgment, which shows affirmatively that no defense was made for an insane person, that no guardian was appointed to defend for her, that default was made, etc., was no bar to this suit. The judgment was void. Kirby's Dig., § 6050; 11 Ark. 519; 47 Id. 431; 49 Id. 397 411.

2. The condemnation proceeding was a special proceeding, and the law was not followed. The judgment is open to collateral attack. Kirby's Dig., §§ 2947, 2949; 1 Lewis on Em Domain, (2 ed.) § 269; 47 Ark. 440-1; 21 Vt. 108; 9 How. (U.S.) 336; 20 Ark. 561-6-7; 19 Id. 499; 40 Id. 124; 55 Id. 30; 40 Id. 124; 11 Id. 120; 97 U.S. 444; 71 Ark. 318.

C. E. & H. P. Warner, for appellee.

1. The judgment in the condemnation suit is conclusive until reversed or vacated by direct proceeding. 49 Ark. 397; 72 Id. 299; 50 Id. 188; 1 Black on Judgments § 205; 23 Cyc. 1072.

2. Evidence dehors the record was not admissible to show that the judgment was void. 39 Ark. 242; 32 N.E. 920; 112 Ind. 221; 47 S.W. 394.

3. The judgment was not void, but voidable only on a showing of a meritorious defense. 148 S.W. 1038; 51 Ark. 224; 57 Id. 628; 114 Cal. 218; 63 Tex. 88; 1 Black on Judgments, § 193.

4. If the records were silent as to notice, still the presumption is that the statute requiring notice has been complied with. 55 Ark. 30; 49 Ark. 397; 71 Id. 318.

OPINION

FRAUENTHAL, J.

This is an action instituted in 1909 by the guardian of Ella Hare, a person alleged to be of unsound mind, against the Fort Smith & Western Railroad Company to recover damages for the appropriation by it for railroad purposes of certain land alleged to be owned by her. The defendant denied that Ella Hare owned said land, and pleaded in bar of any right she might have a judgment rendered in a suit instituted by it against said Ella Hare and others in which said land was duly condemned for its railroad purposes. The case was tried by the court sitting as a jury upon an agreed statement of facts. From this it appears that in 1901 the Fort Smith & Western Railroad Company instituted an action in the Sebastian Circuit Court for the condemnation of the land involved in the present suit. A number of persons were made parties to that action, amongst whom were said Ella Hare and Matt Grey, administrator of the estate of Mary A. Hare, the mother of said Ella Hare. After the filing of the complaint in that action, an order was made by said court directing the railroad company to make a deposit of a stated sum, in pursuance of the statute in such cases provided. In that order it is recited that, "it appearing to the court that due and sufficient notice has been given defendants herein, and that said motion is now properly presented, * * * and the court, being fully advised, doth sustain said motion and doth order that the plaintiff deposit. * * * subject to the order of the court, the sum of $ 2,000 for the purpose of making compensation to the defendants when the amount due them for the property herein sought to be appropriated shall have been assessed according to law." In that suit Matt Grey as such administrator alone filed an answer. Thereupon the cause came on for trial before a jury to assess the damages sustained by the defendants by reason of the appropriation of said land by the railroad company, who returned a verdict in the sum of $ 3,000 damages. A judgment was thereupon rendered condemning said land to the use of said railroad company and adjudging a recovery against it in favor of the defendants for said damages. In that judgment it is recited "that the defendants (naming them and the said Ella Hare specifically) have each and all been regularly and legally served with summons herein the due and proper length of time before the beginning of this term." None of the papers in said case could be found except the answer of said Matt Grey as administrator, and it does not appear in any order of the court in that action that said Ella Hare was laboring under any legal disability, or that any guardian was appointed or appeared for her or filed an answer for her in that proceeding.

Upon the trial of the present case the plaintiff offered to prove (and in said agreed statement of facts it is conceded) that Ella Hare was at the time of the institution of said condemnation suit, and has been continuously ever since that time, a person of unsound mind. The court refused to permit the introduction of any evidence other than the record entries made in said condemnation suit. It held that parol testimony was inadmissible to impeach the judgment rendered in said condemnation suit, and that by said judgment the plaintiff herein was precluded from any recovery in the present action.

It is urged by counsel for plaintiff that the court erred in the ruling made by it, because by the offered testimony it would be shown that Ella Hare was at the time of the institution of said condemnation suit and the rendition of said judgment laboring under the disability of insanity, and the record in said case does not disclose that service of process therein was had both upon her and her guardian, nor that an answer was filed in that suit by any guardian for her; and for this reason the judgment is not valid. It will thus be seen that the object of the introduction of said testimony was to impeach said condemnation judgment in a collateral proceeding. The question, therefore, to be determined is whether said judgment is void or only voidable, in event the said Ella Hare was and has been continuously ever since the institution of said suit a person of unsound mind; for it is only when a judgment is absolutely void that it can be impeached collaterally.

When a judgment is not a mere nullity, but only contains some defect which may become fatal and render it invalid, then it is only voidable, and, until it is actually annulled, it has all the force and effect of a perfectly valid judgment. Until by a proper proceeding such judgment is reversed or vacated, it will be effective as an estoppel or as a source of title. A judgment rendered by a court without jurisdiction is void; and to have such jurisdiction the court must have jurisdiction both over the subject-matter of the suit and the parties thereto.

It is conceded that the court rendering said condemnation judgment had jurisdiction over the subject-matter of said suit, and it is only contended that it did not have jurisdiction over the person of Ella Hare for the reason that proper notice had not been given to her thereof. A judgment pronounced against one without notice is void and section 4424 of Kirby's Digest is a statutory declaration of that principle. But in all cases seeking to impeach a judgment for want of notice the question involved is, what is the character of the evidence which is necessary to show such notice or the want thereof? This question was fully and well considered by this court in the case of Boyd v. Roane, 49 Ark. 397, 5 S.W. 704. It was there held that, in the case of a domestic judgment collaterally attacked, "the question of notice or no notice must be tried by the the court upon an inspection of the record only." This ruling has been adhered to so often that the doctrine thus laid down can be considered settled in this State. The judgment of a domestic court having general and superior jurisdiction is presumed regular and valid, and founded upon jurisdiction properly acquired. Our statute provides that when it appears from the recital in the record of the court that notice has been given it shall be evidence of such fact (Kirby's Digest, § 4425); and in the case of Love v. Kaufman, 72 Ark. 265, 80...

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