Stane v. Mettetal

• Court: Arkansas Supreme Court
• Writing for the Court: McHaney, Justice.
• Citation: Stane v. Mettetal, 210 S.W.2d 804, 213 Ark. 404 (Ark. 1948)
• Decision Date: 03 May 1948
• Docket Number: 4-8538
• Parties: Stane v. Mettetal

210 S.W.2d 804

213 Ark. 404

Stane v. Mettetal

No. 4-8538

Supreme Court of Arkansas

May 3, 1948

Appeal from Perry Chancery Court; J. E. Chambers, Chancellor.

Affirmed.

E R. Parham, for appellant.

J G. Moore, for appellee.

OPINION

McHaney Justice.

This appeal stems from litigation which began on April 4, 1942, in which appellants, who are husband and wife, sought to enjoin appellees, who are also husband and wife, from closing a roadway across the land of appellees, which road afforded appellants the only ingress and egress to and from their land. A temporary order was entered granting the relief prayed on the filing of the complaint. Trial resulted in a decree modifying the temporary order to the extent of permitting the gate or gates on appellees' line to be locked on furnishing appellants with a key. This decree was made on July 30, 1942, but was not entered of record until May 5, 1945, when it was entered nunc pro tunc.

On July 7, 1945, appellees filed a motion to vacate the decree of July 30, 1942, on the ground that conditions had changed since July 30, 1942, so that it was now inequitable to allow said injunction to remain in force, in that a better road had been constructed by the county, over other lands, which would be more advantageous to appellants, if they would permit the county to extend same; that appellants and their tenants had continuously failed and refused to keep the gates locked which permitted appellees' stock to escape from their farm; and that the former injunction should be vacated. An amendment to the motion was filed on April 11, 1946, which reiterated the misconduct of appellants and their violations of the injunctive order by leaving the gates open for stock to escape, driving over their lands and crops instead of staying on the road, and that their conduct was malicious, willful and wrongful to their damage.

Appellants, on May 5, 1947, moved to strike the motion to vacate and the amendment thereto for the reason that the term of court at which the injunction was granted had expired and that the court was without power to vacate same. This motion to strike was overruled, and appellants say they "have prosecuted this appeal from such final order under paragraph 3, § 2735 of Pope's Digest."

Whether this is a "final order" from which an appeal may be taken under the section of the Digest mentioned, we do not now determine.

Appellants contend that the injunctive order or decree of July 30, 1942 confirmed appellants' easement across the lands of appellees, and that, if an easement so existed, it cannot be lost except by release or abandonment, and that, the term of court at which said decree was entered having expired, the court is now without power to vacate, or modify same, except as provided by statute, § 8246, Pope's Digest. The rule is well established by many decisions of this court that the trial court, after the lapse of the term, may not set aside, vacate, modify or amend its judgments or decrees, except on one or more of the grounds mentioned in said § 8246. Robinson v. Citizens Bank, 135 Ark. 308, 204 S.W. 615; Robertson v. Cunningham, 207 Ark. 76, 178 S.W.2d 1014; Patillo v. Toler, 210 Ark. 231, 196 S.W.2d 224. But this rule has no application to the power of a chancery court to vacate, set aside or dissolve an injunction previously granted, after the lapse of the term, and counsel for appellants concede this power, provided no vested rights of the parties are abrogated thereby. We think the terms of the injunctive...