Minick v. Ramey
| Decision Date | 09 March 1925 |
| Docket Number | 226 |
| Parties | MINICK v. RAMEY |
| Court | Arkansas Supreme Court |
Appeal from Carroll Chancery Court; J. S. Maples, Special Chancellor; affirmed.
STATEMENT OF FACTS.
This appeal involves the correctness of an order of the chancery court refusing to set aside a decree of foreclosure on the ground that two of the defendants were not served with summons, and also in confirming the report of sale made by the commissioner under the foreclosure decree.
On January 1, 1921, J. H. Minick executed a mortgage on 158 acres of land in Carroll County, Arkansas, to secure an indebtedness to R. C. Ramey for the sum of $ 2,000, subject to two other mortgages on the same land to secure an indebtedness respectively of $ 1,500 and $ 1,000, and amounting in the aggregate to $ 2,500 and the accrued interest.
On the 22d day of May, 1923, R. C. Ramey brought a suit in equity against J. H. Minick and Mertie Minick, his wife, and J. W Karnes and Mary Karnes, his wife, to foreclose said mortgage for $ 2,000 and the accrued interest. A decree of foreclosure was duly entered of record, and it recites that the defendants had been duty served with summons and had made default. The court further found that Ramey was entitled to judgment against J. H. Minick and Mertie Minick, his wife, in the sum of $ 2,117.96, and a commissioner was appointed to sell the land described in the mortgage in satisfaction of this amount, subject to two other mortgages on the same land respectively, for the sums of $ 1,500 and $ 1,000 and the accrued interest.
The commissioner appointed to make the sale reported that he had sold the same subject to the two prior mortgages above referred to, and that R. C. Ramey had bid the sum of $ 3,625.50 for said land, and that the same had been struck off to him for that sum.
Ramey filed exceptions to the report of sale, in which he stated that he had only bid $ 700 for said land, and that the same was sold to him for that sum, subject to the two mortgages above referred to.
The court, after hearing evidence on the exceptions filed ordered the commissioner to amend his report to show that the land was sold to R. C. Ramey for $ 700, subject to the two mortgages above mentioned, and that this made the total amount that he would have to pay for said land the sum of $ 3,626.50. The chancellor ordered the commissioner to amend his report accordingly, and confirmed and approved the report as amended. The testimony on this branch of the case will be stated and referred to in detail in the opinion.
The defendant, J. H. Minick, filed exptions to the report of the commissioner, and asked that the decree of foreclosure be set aside on the ground that he had not been served with summons in the case. He further alleged that judgment was rendered against him in the foreclosure decree for approximately $ 1,000 in excess of the amount he owed Ramey on the mortgage sought to be foreclosed.
The return on the summons showed that it had been served upon J H. Minick and Mertie Miniek by delivering a copy of the same to them. The deputy sheriff who served the summons and made the return on it stated that he delivered copies of the same to Mrs. Mertie Minick, the wife of J. H. Minick, and thought that he was delivering the same to her at her usual place of abode. On this point Mrs. Mettie Minick testified that her husband and herself had broken up housekeeping, and that she was visiting her mother at the time summons was served upon her. She stated further that her husband at the time was working in the State of Missouri.
The chancellor found the issues in favor of the plaintiff, Ramey and from a decree in his favor the defendant, J. H. Minick, has prosecuted this appeal.
Decree affirmed.
Festus O. Butt, for appellant.
Service of summons was not legally had upon John Minick. 142 Ark. 101; 2 Ark. 149; 136 Ark. 546.
C. A. Fuller, for appellee.
The judgment of a court will not be vacated until it is adjudged that there is a valid defense to the action in which the judgment is rendered. 135 Ark. 308; 54 Ark. 539; 102 Ark 252; 136 Ark. 546; 49 Ark. 397; 54 Ark. 539. The findings of the chancellor will not be set aside by this court unless they are clearly against the preponderance of the evidence. 130 Ark....
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... ... not only that he was not summoned, but also that he did not ... know of the proceedings in time to make a defense ... Karnes v. Ramey, 172 Ark. 125, 287 S.W ... 743. See also Fore v. Chenault, 168 Ark ... 747, 271 S.W. 704; and C. A. Blanton Co. v ... First National Bank, 175 ... 1031] show that he ... has a meritorious defense. Smith v. Globe & Rutgers Fire Insurance Company, 174 Ark. 346, 295 S.W ... 388. See also Minick v. Ramey, 168 Ark ... 180, 269 S.W. 565; and American Investment Co. v ... ...
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