State v. West

• Decision Date: 15 October 1923
• Docket Number: 177
• Citation: 254 S.W. 828,160 Ark. 413
• Parties: STATE v. WEST
• Court: Arkansas Supreme Court

254 S.W. 828

160 Ark. 413

STATE v. WEST

No. 177

Supreme Court of Arkansas

October 15, 1923

Appeal from Carroll Circuit Court, Western District; W. A. Dickson Judge; reversed.

Judgment reversed and cause remanded.

J S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants; David A. Gates, inheritance tax attorney, for appellant.

The judgment rendered in vacation and entered of record as of a date during the term of court, although done under agreement was a nullity. 71 Ark. 226; 75 Ark. 415. Parol evidence is admissible to show that a judgment which appears to be regular on its face was actually rendered in vacation, and consequently a nullity. 86 Ark. 591. Section 2190, C. & M. Digest, did not change the law with respect to cases in the circuit court. Dower is subject to the tax. 156 Ark. 169. The Federal estate tax is not a deductable allowance in determining the net value of the share upon which the inheritance tax accrues. 175 N.W. 506; 166 N.Y.S. 168.

W. N. Ivie and J. V. Walker, for appellees. No summons or notice was served on appellees as contemplated by § 1316 C. & M. Digest. The appeal must be tried on the record in the case. 2 Ark. 14; 111 Ark. 201. Errors complained of, not appearing on the face of the record, must be brought to the attention of the court by bill of exceptions. 47 Ark. 504; 84 Ark. 342. There is no bill of exceptions, and the matters complained of in the motion, with exhibits attached, are not before this court, and cannot be considered, because not a part of the record. 40 Ark. 114; 7 Ark. 266; 36 Ark. 305; 38 Ark. 594; 79 Ark. 185; 95 Ark. 302. Where there is no error on the face of the record, a bill of exceptions and motion for new trial are necessary. 139 Ark. 408. The latter does not take the place of the former. 135 Ark. 499. Parol evidence is not competent to contradict the affirmative recitals of a decree. 141 Ark. 512; 50 Ark. 338; 55 Ark. 218; 12 C. J. L. 968, § 1205; 22 Ark. 308.

SMITH, J. Mr. Justice HART dissents.

OPINION

SMITH, J.

On June 29, 1921, D. J. West, executor, and Helen E. Granger, legatee, of the estate of R. S. Granger, filed a complaint in the Carroll County Probate Court against the State of Arkansas, pursuant to § 10235, C. & M. Digest, alleging that R. S. Granger had died testate, leaving his estate to his widow, except a money legacy to his executor. It was alleged that Granger had died without issue, and that petitioner, Helen E. Granger, his widow, took one-half of the estate as dower and the other half under the will, and that the inheritance tax attorney for the State was asserting that the entire estate, the dower included, was subject to the tax. There was a prayer that the court declare the sum upon which the inheritance tax should be paid.

On July 30, the inheritance tax attorney answered for the State, and admitted that Helen E. Granger was the sole beneficiary, but alleged the estate was more valuable than petitioners had alleged it to be, and that the entire estate was subject to the tax.

The cause was tried in the probate court, and judgment was rendered in favor of the plaintiffs, the court finding there was no tax due on the part of the estate which the widow had taken as dower.

The State appealed to the circuit court, and there was a judgment there in favor of the original plaintiffs, which was an erroneous judgment, in view of the decision of this court in the case of State v. Boney, 156 Ark. 169, 245 S.W. 315. Thereafter the State filed in the circuit court a petition to vacate this judgment, and that petition contained the following allegations: That the appeal of the State was heard by the court by consent in vacation, the judgment being rendered on November 15, 1921, but entered as of August 6, 1921, which was a day of the court. This judgment was adverse to the State's contention, and, as originally entered, did not show a motion for a new trial. Later an amended judgment was entered by consent on January 6, 1922, showing that a motion for a new trial had been filed and an appeal prayed. There is an allegation explaining the delay in the preparation of the transcript, which was not received by the inheritance tax attorney until February 8, 1922, which was not then filed because more than six months had expired since August 6, 1921, the date upon which the judgment had apparently been rendered.

This motion to vacate was filed July 18, 1922, and notice thereof was duly served on West, the executor, and on July 19, 1922, W. N. Ivie, attorney for Mrs. Granger, accepted service for himself only, expressly stating that he would not and did not accept service for his client, Mrs. Granger. On July 31, service of the notice was had upon J. V. Walker, an attorney in the original cause. In the recital of the service of the notice to vacate, J. V. Walker is referred to as attorney for the plaintiff, D. J. West, but it is also recited that "the plaintiffs, D. J. West and Helen E. Granger, appear specially through their attorneys, W. N. Ivie and J. V. Walker, and demur to the jurisdiction of the court to hear the motion to vacate the judgment by this court at a former term. * * *"

The demurrer of the attorneys for the executor and the legatee was filed on August 17, and was upon two grounds: (1) that no summons or notice was issued or served on the plaintiffs herein in the manner prescribed by law; (2) the motion to vacate the judgment filed by the defendant is not a proper or valid pleading, and does not state facts sufficient to constitute a cause of action.

The court heard the demurrer and sustained it, and dismissed the petition, and this appeal is from that order.

The action of the court below is defended upon three grounds, the first being that the original judgment of the circuit court could only be vacated by a proceeding authorized by § 6290, C. & M. Digest, and that, of the eight grounds there named for vacating or modifying judgments, only the first contemplated such a proceeding as this, it being "by granting a new trial for the cause and in the manner prescribed in § 1316, C. & M. Digest," and this last-named section requires that a summons be first served, which was not done in the instant case.

We do not think, however, that the State's right to proceed to vacate the judgment is created by § 6290 of the Digest; nor do we think that the procedure is controlled by that section, or by § 1316 of the Digest. In fact, this is not a statutory proceeding, but is a special proceeding, instituted for the purpose of calling to the attention of the court the invalidity of the purported judgment, for the reason that it was rendered in vacation.

The case of Jackson v. Becktold Printing & Book Mfg Co., 86 Ark. 591, 112 S.W. 161, was brought to vacate a judgment of the circuit court which had been rendered in vacation. In opposition to the relief there prayed, it was contended that the fact that the judgment was rendered in vacation could not be shown by testimony, but could only be shown by the record itself, but the court said that, if this contention were correct, we would have the anomalous condition of a decree being a nullity and of the...