Robertson v. Yarbrough

• Decision Date: 01 October 1923
• Docket Number: 134
• Citation: 254 S.W. 492,160 Ark. 223
• Parties: ROBERTSON v. YARBROUGH
• Court: Arkansas Supreme Court

254 S.W. 492

160 Ark. 223

ROBERTSON v. YARBROUGH

No. 134

Supreme Court of Arkansas

October 1, 1923

Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor; appeal dismissed.

Appeal dismissed.

E D. & Jas. Robertson and Daggett & Daggett, for appellant.

H F. Roleson and C. W. Norton, for appellee.

OPINION

PER CURIAM:

Appellant claiming title to a certain tract of land in Lee County by inheritance and also by an additional chain of title under judicial sale, instituted this action in the chancery court of Lee County against appellees to quiet her title against asserted claims of appellees. In an amendment to the complaint there was a prayer for a lien for taxes in the event the decision of the court was adverse to appellant's claim of title. Appellees answered, denying the allegations of the complaint with respect to appellant's assertion of title, and also pleaded the statute of limitations. Appellees also filed a cross-complaint alleging that they were the owners and in actual possession under a probate sale of the title of appellant's ancestor, and prayed that their title be quieted.

The record shows that a decree was rendered by the court on November 16, 1920, finding against appellant on her assertion of title and dismissing her complaint for want of equity, and sustaining the cross-complaint of appellees by quieting their title, "except as to taxes paid herein on the twenty-five acres in controversy, together with interest thereon at six per cent. per annum, paid by plaintiff, for which judgment is rendered against defendant, and the court retains jurisdiction of this cause for the purpose of ascertaining the amount of same." The court also rendered judgment against appellant for costs of the action.

There was another entry of a decree on November 20, 1922, in substance the same as the former decree entered on November 16, 1920, except that, instead of reserving the case for ascertainment of the amount of taxes, the court proceeded to ascertain the amount, but the amount is not stated in the decree--the blank for that purpose is unfilled as the record appears before us. The last entry concludes with the following paragraph: "And it appearing that this decree was rendered in part on November 16, 1920, and in part on the 18th day of October, 1922, it is hereby ordered to be entered nunc pro tunc."

The present appeal was granted by the clerk of this court on May 17, 1923. Counsel for appellees have filed a motion to dismiss the appeal on the ground that it was not prosecuted within the time allowed by statute, that is to say, within six months from the date of the final decree.

This court is of the opinion that the decree of November 16, 1920 was final and appealable, except as to the lien for taxes and that the appeal granted by the clerk of this court was too late. This subject is fully discussed in the case of Davie v. Davie, 52 Ark. 224, 12 S.W. 558, and the...