Quirles v. Smith

• Decision Date: 23 January 1933
• Docket Number: 4-2801
• Citation: 56 S.W.2d 427,186 Ark. 835
• Parties: QUIRLES v. SMITH
• Court: Arkansas Supreme Court

56 S.W.2d 427

186 Ark. 835

QUIRLES v. SMITH

4-2801

Supreme Court of Arkansas

January 23, 1933

Appeal from Poinsett Circuit Court; Neill Killough, Judge; affirmed.

Judgment affirmed.

C. T Carpenter, for appellant.

OPINION

KIRBY J.

This appeal comes from a judgment of the circuit court refusing to vacate and set aside a default judgment rendered herein.

The case was begun in the justice court as a suit on a note with an attachment issued. An affidavit and bond for attachment were filed and a writ of replevin was issued, it seems. The case was transferred to the court of common pleas on motion of the defendant's attorney, who failed to appear for his clients, and the default judgment against them and their bondsmen was rendered but was not entered on the judgment record of that court. Their attorney, Kelley, filed a motion to vacate the judgment, but withdrew it and took an appeal to the circuit court.

There was no record of the proceeding and no judgment of the court of common pleas, no note or copy of it and no mortgage transmitted to the circuit court.

On December 21, 1931, the circuit court affirmed the judgment of the court of common pleas by default, it being alleged that no evidence was introduced there nor a copy of the note upon which suit was brought, no judgment or docket entries of the court of common pleas, and no evidence to support the attachment and fix the damages. The defendants and their bondsmen learned of the judgment and at the adjourned day of the court on February 19, 1932, presented their motion to vacate the default judgment, which the court overruled, and this appeal is prosecuted from that order.

The motion to vacate the judgment was filed on the 21st day of January, 1932, and heard by the court at an adjourned day of the regular term on February 19, 1932. It was alleged in the motion to vacate that the defendants had employed and paid an attorney to defend the suit, but that he failed to attend the trial or notify the defendants and judgment was taken against them by default. It was alleged that the judgment was void because rendered without evidence and was but an affirmance of the judgment of the common pleas court, where no judgment was in fact entered of record; and that the defendants and their bondsmen have a good defense for the following reasons:

"(a) That the property was never attached; (b) that the affidavit calls for attachment but no order of attachment was issued but an order of delivery in its stead; (c) that the property was never taken under the order of delivery; (d) that the property, if attached or taken, was...