Radford v. Samstag

• Decision Date: 18 May 1914
• Docket Number: 328
• Parties: RADFORD v. SAMSTAG
• Court: Arkansas Supreme Court

167 S.W. 491

113 Ark. 185

RADFORD v. SAMSTAG

No. 328

Supreme Court of Arkansas

May 18, 1914

Appeal from Logan Chancery Court; W. A. Falconer, Chancellor affirmed.

STATEMENT BY THE COURT.

Appellant was the plaintiff below, and alleged in his complaint that a judgment had been obtained against him by fraud, accident or mistake, and that he had a meritorious defense to said action, which he set out. Appellees demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action and that the court had no jurisdiction of the subject-matter. This demurrer was overruled and no further action appears to have been taken until at the third term of the court thereafter, when a new chancellor had been elected and was presiding, when the demurrer was again presented and was sustained by the court and the action dismissed, and the temporary restraining order which had been granted was dissolved. This appeal is prosecuted from that decree.

The material allegations of the complaint were that appellees had brought suit against the plaintiff and one C. L. Poole on an implied contract to pay for certain services, and that upon the trial of said cause the justice of the peace discharged the said Poole, but rendered judgment against plaintiff for the sum of one hundred and fifty dollars. That both parties prayed an appeal, and it was then and there agreed that all formalities should be waived and that the transcript should be lodged with the clerk of the circuit court, which was then in session and should be tried in said court at that term and that a transcript and the papers were transferred to said court by the said justice the next day, and said cause was docketed in said court, and when said cause was called for trial it was agreed that it should be continued until the January term following. Said defendants entered their appearance in the circuit court and agreed to said continuance without making any motion to dismiss for want of an affidavit for appeal, which affidavit could have been supplied at that time, if said motion had been made, as the time in which an appeal could be taken had not then expired that the justice by mistake or inadvertence had failed to prepare and file a proper transcript of the proceedings of his court, which failure was not due to any default of plaintiffs. That the attorneys for defendant agreed they would see that a proper transcript was filed so that a trial might be had at the ensuing August term; but they failed so to do. The circuit court dismissed the appeal because the transcript failed to show an affidavit for an appeal had been filed. The breach of the agreement to file a proper transcript constitutes the fraud of which appellant complains. The complaint further alleged that an execution had issued on the justice's judgment and there was a prayer that the enforcement of this judgment be enjoined until the final hearing, at which time the court was asked to set aside said judgment and grant him a new trial. An answer was filed, denying the material allegations of the complaint.

Appellant insists that the order of the court overruling the demurrer was a final decree, which passed beyond the control of the court at the end of the term and could only be set aside upon appeal, and that in any event the court erred in sustaining the demurrer. Appellee joins issue on both these propositions and in addition says the chancery court had no jurisdiction.

Decree affirmed.

W. A. Ratterree, J. S. McKnight and Poole & Speer, for appellant.

1. Fraud and collusion give a court of chancery jurisdiction and when that court assumes jurisdiction for one purpose it will grant complete relief. Story on Equity, § 58; Id. §§ 64, 65, 70.

2. The judgment on the demurrer became final at the expiration of the term and appellees could not properly present the same demurrer to a different chancellor at a subsequent term and obtain a ruling on it. 2 Black on Judgments, §§ 709-711; 63 Ark. 254; 86 Ark. 505. The remedy would be by appeal or bill of review. Black on Judgments, § 329; 86 Ark. 504; 99 Ark. 433-437.

3. Where a judgment is obtained in a court of law by fraud, accident or mistake, unmixed with negligence on the part of judgment-defendant, a court of equity has jurisdiction, on a showing of a meritorious defense, to compel the party obtaining the judgment to submit to a new trial. 35 Ark. 123; 61 Ark. 347; 38 Ark. 283; 1 Black on Judgments, § 356.

Roberts & Kincannon and Carmichael, Brooks, Powers & Rector, for appellees.

1. The order of March 12, 1912, was not a final order or decree, and is, therefore, not res judicata. It was a mere preliminary step in the case, or interlocutory order, and did not purport to adjudicate the rights of the parties in any sense, but, on the contrary, continued the case and left it open for future disposition on its merits. 92 Ark. 101, 102; 102 Ark. 380; 99 Ark. 496; 83 Ark. 371.

2. The complaint does not state a cause of action. An allegation of fraud, stated in general terms, is not sufficient, but the facts constituting the fraud must be set out. Moreover before one can be relieved in a court of equity from the liability of a judgment obtained at law, he must show that he was not guilty of negligence or laches. 6 Ark. 79; Id. 317; 12 Ark. 401; 43 Ark. 107; 91 Ark. 362. Plaintiffs in this case were guilty of negligence in failing to file the affidavit for appeal from the justice of the peace to the circuit court. 87...