Ward v. Derrick

• Decision Date: 08 April 1893
• Citation: 22 S.W. 93
• Parties: WARD et al. v. DERRICK, Sheriff, et al.
• Court: Arkansas Supreme Court

Page 93

22 S.W. 93

WARD et al. v. DERRICK, Sheriff, et al.

Supreme Court of Arkansas.

April 8, 1893.

Appeal from circuit court, Lee county; Grant Green, Jr., Judge.

Bill by L. Ward and another against W. T. Derrick and others to set aside judgments rendered against plaintiffs in the circuit court, and praying for the cancellation of a bond on which such judgments were rendered. There was a judgment for defendants on demurrer to the bill, and plaintiffs appeal. Affirmed.

H. N. Hutton and N. W. Norton, for appellants. McCulloch & McCulloch and James P. Brown, for appellees.

HUGHES, J.

This is an appeal from a decree sustaining a demurrer to a complaint in equity. The complaint sets out that the plaintiffs had applied to the circuit court, on the law side, to set aside certain judgments rendered against them upon a bond executed to discharge attachments levied upon property of J. C. Ward, a part of which had been claimed by L. Ward upon an interplea, who had given an interpleader's bond for the same; that their application was made at the term of the court when the judgments were rendered; that the defense they proposed to make against the bond was non est factum, which they set up in their motion to set aside the judgments. The court, without objection, heard evidence upon the plea of non est factum, and found against the appellants, and refused to set aside the judgments. There was no appeal from the court's judgment upon the motion to set aside the judgments upon the bond.

The appellants, after the term of the court had passed at which these judgments were rendered, filed their complaint in equity to have them set aside, and prayed that the bond on which they were rendered be canceled, on the ground that its execution was procured by fraud, or that it was executed through the mutual mistake of the officer and themselves. It is not stated in the complaint that this was not known to them when they filed their motion to set aside the judgments, nor does the complaint show that the appellants were prevented, without fault or lack of diligence upon their part, from making this defense before the lapse of the term at which the judgments were rendered. Section 5033, subd. 4, Mansf. Dig., provides that "the defendant may set forth in his answer as many grounds of defense, counterclaim, and set-off, whether legal or equitable, as he shall have." The circuit court which rendered the judgments upon the bond had the power to set aside these judgments at...