Stewart v. Wood

• Decision Date: 25 May 1908
• Citation: 111 S.W. 983,86 Ark. 504
• Parties: STEWART v. WOOD
• Court: Arkansas Supreme Court

111 S.W. 983

86 Ark. 504

STEWART v. WOOD

Supreme Court of Arkansas

May 25, 1908

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge affirmed.

Judgment affirmed.

Winchester & Martin, for appellant.

The opinion delivered on the former appeal settles this controversy. 81 Ark. 41. The judgment appealed from is clearly erroneous. 63 Ark. 141; 79 Ark. 185; 60 Ark. 50; 56 Ark. 170; 55 Ark. 609. The only question sent down to the lower court was, did the agreement as to the judgment remain in force between the parties up to the time of its rendition and, incidentally, what amount of judgment was agreed upon? If the lower court meant by its finding that no agreement ever existed, or that it had been rescinded, such finding is not supported by the record. Appellant does not contend that an agreement existed as to the amount of judgment, but that he signed the guaranty as a witness merely. If he is liable at all, it is only for the $ 100.00, keep of the jack, with interest.

Sam R Chew, for appellee.

In order to set aside the former judgment, the burden was on appellant to prove fraud in obtaining it. Kirby's Dig., § 4431, sub-div. 4. And he must show a valid defense to the action. Id. § 4434. Failing in this, he has no standing here, even though the judgment had been obtained by fraud. 49 Ark. 497; 54 Ark. 539. The question presented on remand to the circuit court was one of fact, which that court has found contrary to appellant's claim. The judgment should be affirmed.

OPINION

HART, J.

This action is before the court a second time. The former opinion is reported in 81 Ark. 41, to which reference is made for a statement of the case.

When the cause was remanded, it was transferred to the circuit court pursuant to the directions of this court. Stewart then filed his motion to set aside the judgment, basing it on the fourth sub-division of section 4431 of Kirby's Digest, which reads as follows:

"For fraud practiced by the successful party in the obtaining of the judgment or order."

The motion was heard before the same judge who tried the case in the first instance. After hearing the evidence, he denied the motion, and made the following findings of fact: "I find that the case was originally tried upon proof where the plaintiff, S.W. Stewart, had the benefit in his presence and hearing and with his knowledge of his defense to the action; that all matters litigated here were considered by the court in that case, and the judgment was rendered upon proof, and not upon agreement between Stewart and Fitzhugh, and that at the time of the rendition of the judgment there was no existing agreement between Stewart and Fitzhugh by which the court should render any amount of judgment; that Stewart and Fitzhugh appeared here as adversaries in the court, contending for their respective contentions, and the finding of the court in that case will not be disturbed. For these reasons the motion to vacate and modify the judgment will be overruled."

This court in its former opinion held that if Wood, while the alleged agreement was in force, procured judgment against Stewart for more than the latter had agreed to, or for more than it was agreed that Wood should ask for, then the judgment should be to that extent set aside. It, also, in effect, held that, if judgment in the first instance was rendered pursuant to the agreement, it should be presumed that Stewart only agreed that judgment should be entered for the amount for which he was liable by the terms of the written guaranty, which was the foundation of the action.

The findings of facts made by the circuit judge in his judgment denying the motion of Stewart to set aside the judgment rendered in the first instance show that the case, as originally tried, was upon the merits, and that judgment was not entered...