Ward v. Derrick

• Decision Date: 08 April 1893
• Citation: 22 S.W. 93,57 Ark. 500
• Parties: WARD v. DERRICK
• Court: Arkansas Supreme Court

22 S.W. 93

57 Ark. 500

WARD v. DERRICK

Supreme Court of Arkansas

April 8, 1893

Appeal from Lee Circuit Court in Chancery, GRANT GREEN, JR., Judge.

Judgment affirmed.

H. N Hutton and N.W. Norton for appellant.

1. The allegations of the complaint make a case of fraud--and certainly a case of mutual mistake--entitling appellants to relief in equity. 13 Ark. 129; 15 Ark. 489; 11 S.Ct. 972; 17 Ark. 512; 48 Ark, 535.

2. Appellants are not cut off by sec. 4932, Mansf. Dig. They did not know of their predicament until about the close of the term, and until after judgments were rendered; and further the section should only be binding on those who have a right to defend and are required to do so under the rules of pleading. The sureties on an attachment bond have no general right to defend; and the right to affirmative relief claimed is based on discoveries made after the judgments.

3. Under provisions similar to subd. 4, sec. 5033, Mansf. Dig. it is held in some States that defendant must plead all his defenses or lose the right; while in others the rule is to the contrary. 2 Black, Judg. sec. 766; 6 Cal. 452. But the sureties, in jurisdictions where a defendant must plead all defenses, would not be dismissed because of having made the motion to vacate. They were not defendants in the sense that they must or could answer. The motion to vacate was on the sole ground of non est factum. Nothing else was up for consideration. Overruling a motion does not estop one from proceeding in a more formal way; in any event does not bar him from proceeding anew on different facts. 2 Black, Judg secs. 691-2; Freeman, Judg. secs. 325-6 and 511; 1 P. 572; 55 Ark. 292.

McCulloch & McCulloch and James P. Brown for appellees.

1. Appellants should have set up all their grounds of defense and for relief, legal or equitable, in the court where the cause was tried before the term lapsed. It was too late after the term elapsed. Pom. Eq. Jur. sec. 1361, 1364, and notes; 2 Black, Judg. secs. 361, 368, 378, 387; High on Inj. secs. 113-116, 165-7, and note; Story, Eq. Jur. secs. 887-8, 894-6.

2. A party having an opportunity to defend must make all his defenses, and what is not made is waived. 14 Ark. 217; 6 id. 317; 16 id. 114; 48 Ark. 510; 50 id. 458.

3. Mansf. Dig. sec. 4932 is the law of this case.

OPINION

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 cancelled, 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...