Rankin v. Schofield

• Decision Date: 04 January 1902
• Citation: 70 S.W. 306,71 Ark. 168
• Parties: RANKIN v. SCHOFIELD
• Court: Arkansas Supreme Court

70 S.W. 306

71 Ark. 168

RANKIN v. SCHOFIELD

Supreme Court of Arkansas

January 4, 1902

Appeal from Woodruff Circuit Court in Chancery MATTHEW T. SANDERS Judge.

Reversed.

Suit by Octavia Mitchell (who afterwards married Schofield) and others against Sallie Spott Gibson (who afterwards married Rankin) and others. A compromise decree was rendered at the February term, 1889, in which, after reciting the appearance of the parties and the contention of the plaintiffs that they were the sole surviving heirs of J. N. S. Gibson, deceased who died intestate, and that defendant Sallie Spott Gibson was not a legitimate daughter of the deceased, and also the contention of defendant Sallie Spott Gibson that she was the lawful heir of deceased, the court continued as follows:

"And it appearing that numerous depositions have been taken in this case, and that the litigation is likely to be long and tedious of family matters, now, therefore, in order to put an end to litigation, and as an amicable adjustment and settlement of a family affair, in regard to the descent inheritance and settlement of the rights of the plaintiffs and defendants in regard to all the real and personal estate of the said J. N. S. Gibson, as above described, and mentioned as being in the hands and control of his administrator, L. D. Snapp, as aforesaid, it is hereby ordered, considered and decreed by the court, as well as by the consent and agreement of all the parties hereto, both plaintiffs and defendants, that the said estate, both personal and real, and all rents arising from said land including the rents for 1889, and now to be settled and accounted for by said administrator, be equally divided, giving to the plaintiffs one-half of the same and the defendants, Sallie Spott Gibson and Bettie Harwell, as their rights may appear, the other half."

The court then ordered that the property be sold, and appointed a commissioner for that purpose. The commissioner made a sale, which was approved by the court. The proceeds of sale were divided according to the above decree.

On February 19, 1900, Sallie Spott Rankin prayed an appeal, alleging that she came of age in June, 1899. Appellees moved to dismiss the appeal as barred by limitation.

Decree affirmed.

Gustave Jones and J. A. Watkins, for appellant.

The presumption is in favor of legitimacy of children. 4 L. R. A. 434, 437. Illegitimacy must be established beyond a reasonable doubt. 8 L. R. A. 105. Plaintiffs, being out of possession, had no right to maintain partition. 47 Ark. 238; 44 Ark. 338; 27 Ark. 77; 40 Ark. 155; 56 Ark. 391; Pom. Eq. Jur. § 252; 3 Kerr, Real Prop. §§ 2009, 2019. Final decree should be entered here. Sand. & H. Dig. § 1064; 45 Ark. 177, 191; 48 Ark. 316; 54 Ark. 278.

O. W. Scarborough, Joseph W. House and Menefee House for appellees.

Having properly acquired jurisdiction, the court had authority to do complete justice and settle every question that arose. 31 Ark. 345; 38 Ark. 435; 48 Ark. 544; 14 Ark. 50; 15 Ark. 24; 52 Ark. 411; 30 Ark. 278; 34 Ark. 410; 37 Ark 164; 37 Ark. 286; 38 Ark. 397; 46 Ark. 25. The statutory regulations as to partition do not take away the original jurisdiction of chancery. 19 Ark. 233. The appeal should be dismissed because not taken by the party in interest. 30 Ark. 578; 28 Ark. 478; 47 Ark. 411 2 Cal. 57; 17 Md. 525; 58 Mich. 86; Sand. & H. Dig. §§ 1027, 5623. Appellant's consent to the appeal must appear. 8 Ark. 285.

Gustave Jones and J. A. Watkins, for appellant, in reply.

Caveat emptor applies to the sale of the land under the decree. 53 Ark. 542; 36 Ark. 591; 27 L. R. A. 252; 18 L. R. A. 88; Rorer, Jud. Sales, 474. Ejectment was the remedy, and equity had no jurisdiction. 113 U.S. 550; 40 Ark. 155; 43 Ill. 282; 17 Am. & Eng. Enc. Law, 661, 695; 27 Ark. 96; 3 Grant's Cases (Pa.) 177; 7 Mass. 475.

OPINION

WOOD, J.

The decree from which this appeal was taken was rendered in February, 1889. This appeal was granted by the clerk of this court February 19,1900. The appellant was born June 24, 1881. She was therefore 18 years, 7 months, and 25 days old when this appeal was granted. The decree from which she appeals had been rendered 11 years before. The act approved March 16, 1899, to regulate the time in which appeals and writs of error may be taken to this court, is as follows:

"Section 1. An appeal or writ of error shall not be granted except within one year next after the rendition of the judgment, order or decree sought to be reviewed, unless the party applying therefor was an infant or of unsound mind at the time of its rendition, in which cases an appeal or writ of error may be granted to such parties or their legal representatives within six months after the removal of their disabilities or death.

"Sec. 2. The parties to all judgments, orders or decrees rendered within two years prior to the passage of this act shall have one year from the time it shall take effect within which to pray an appeal or sue out a writ of error. The time for taking an appeal or suing out a writ of error on all judgments, final orders and decrees rendered more than two years prior to the passage of this act shall be three years from the date of the judgment, order or decree."

Acts 1899, p. 111.

This act was passed to amend section 1027, Sand. & H. Dig., which is as follows: "An appeal or writ of error shall not be granted, except within three years next after the rendition of the judgment or order, unless the party applying therefor was an infant, married woman, or of unsound mind at the time of its rendition, in which case an appeal or writ of error may be granted to such parties, or their legal representative, within one year after the removal of their disabilities, or death, whichever may first happen."

Appellee contends that the appeal was barred under either of the sections of the act of March 16, 1899, supra.

(a) The first section is prospective in its operation. It applies only to appeals from judgments, orders, and decrees rendered after the act took effect. This is the general rule of construction, and that it is the true rule to apply to this section is manifest when considered in connection with the second section, for that section expressly provides the time for appeal from all judgments, orders, or decrees rendered prior to the passage of the act. The first section has therefore no application.

(b) The first clause of the second section has no application here, for that refers to appeals from judgments, etc., rendered within a period of two years prior to the date of the passage of the act. The decree in this case was rendered about 10 years prior to the passage of the act, so it comes within the latter clause of the second section of the above act, which prescribes: "The time for taking an appeal or suing out a writ of error on all judgments, final orders and decrees rendered more than two years prior to the passage of this act shall be three years from the date of the judgment, order or decree." From all judgments, final orders, and decrees rendered three years or more prior to the passage of the act, no time is given in which to appeal. This would, eo instanti, deprive infants of the right to appeal. The legislature could not do that. Sec. 15, art. 7, Const.; O'Bannon v. Ragan, 30 Ark. 181.

2. The decree appealed from, after setting out the issues, proceeds as follows: "And it appearing that numerous depositions have been taken in this case, and the litigation herein is likely to be long and tedious of family matters: Now therefore, in order to put an end to litigation, and as an amicable adjustment and settlement of a family affair in regard to the descent, inheritance and settlement of the rights of the plaintiffs and defendants in regard to all the real and personal estate of the said J. N. S. Gibson, as above described and mentioned as being in the hands or control of his administrator, L. D. Snapp, as aforesaid, it is hereby ordered, considered and decreed by the court, as well as by the consent and agreement of all the parties hereto, both plaintiffs and defendants, that," etc. It appears that the court did not enter upon the merits of the controversy, but rendered the decree "to put an end to litigation, and as an amicable settlement and adjustment of a family affair." The question, then, is, can appellant appeal from a compromise decree entered by the consent of her regular guardian? The statute...