Wilson v. Parkinson

• Decision Date: 05 February 1923
• Docket Number: 139
• Citation: 247 S.W. 774,157 Ark. 69
• Parties: WILSON v. PARKINSON
• Court: Arkansas Supreme Court

247 S.W. 774

157 Ark. 69

WILSON v. PARKINSON

No. 139

Supreme Court of Arkansas

February 5, 1923

Appeal from Drew Chancery Court; E. G. Hammock, Chancellor affirmed.

Decree affirmed.

J S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellant.

An ancillary action is applicable to proceedings growing out of the original proceedings in the same court and dependent on such proceedings, and instituted for the purpose of enforcing a judgment or rendering complete justice among all parties in interest. 106 F. 170; Words & Phrases, vol. 1, p. 384. The question of jurisdiction, therefore, goes back to the jurisdiction of the court in the original suit.

1. Did the chancery court have jurisdiction to adjudicate title to land not located within the chancery district? Also did the chancery court sitting in one county have jurisdiction to adjudicate the title to lands in another county, though in the same chancery district? See Crawford & Moses' Digest § 1164; 27 Ark. 482; 55 Ark. 442; 70 Ark. 346; 72 Ark 376; 133 Ark. 250; 134 Ark. 337; 42 Ark. 442.

2. Jurisdiction could not be conferred, if originally lacking, by consenting to the amendment of the original complaint so as to embrace lands in another county in the same chancery district, and lands in another county in a different chancery district. 33 Ark. 31; 34 Ark. 399. See also, 5 Ark. 409; 29 Ark. 47; 90 Ark. 195; C. & M. §§ 3945, 3946, 3992-3; Id. §§ 4038-9; and 4048. We think that the venue statute should be limited in its application at least to the district constituting the court's venue.

Moore, Smith, Moore & Trieber, for appellee.

1. The jurisdiction of a court of equity to give effect, upon ancillary complaint, to a decree of the same court as the exigencies of the situation may require, is beyond question. 10 R. C. L. "Equity," § 106; 21 Corpus Juris, "Equity," § 867 et seq.

2. The principle of res judicata applies to the State and its officials. 15 R. C. L., Judgments, § 504.

3. The ancillary proceeding is not a suit against the State. Relief is asked against the Commissioner of State Lands, Highways and Improvements, who is bound by the original decree, and his acts in disregard thereof are not acts of the State, but an abuse of the authority conferred on him by statute. 25 R. C. L., par. 50; 245 U.S. 541.

4. The court in the original suit had jurisdiction of all the lands, although they were not parts of the same tract. C. & M. Digest, § 1164; 133 Ark. 250, 255. And it had jurisdiction of all the lands, although they were not all embraced within the same chancery district. The limitation suggested by appellant is unnecessary, since, under the statute, C. & M. Digest, § 6283, a certified copy of a decree affecting title to lands must be recorded in each county in which the lands lie. Moreover, the adoption of the suggested construction would require to be read into the venue statute words which are not there. Venue does not depend on the legal or equitable nature of the remedy sought, but solely on whether the action is in rem or purely in personam; if in rem, it is a local action, and if in personam, it is a transitory action, regardless of whether the action is brought at law or in equity. 42 Ark. 422, 439; 55 Ark. 442, 445; Id. 454; 133 Ark. 250, 257.

OPINION

WOOD, J.

In 1917 a suit was instituted by the State of Arkansas in the Drew Chancery Court against Mrs. Kate C. Parkinson. The object of the suit was to cancel the alleged title of Mrs. Parkinson to numerous tracts of land which she acquired from the State through mesne conveyances. The lands were situated in Drew, Ashley and Union counties. The chancery court entered a decree dismissing the complaint of the State for want of equity, and quieting the title to the lands in Mrs. Parkinson. No appeal was prosecuted from that decree. Some of the lands embraced in the decree Mrs. Parkinson still owns. Some she has sold, executing warranty deeds therefor. The records of the Commissioner of State Lands, Highways and Improvements do not in any manner refer to the decree of the Drew Chancery Court above mentioned. This action was instituted by Mrs. Parkinson in the Drew Chancery Court in November, 1922, against the Commissioner of State Lands, Highways and Improvements. She attached as an exhibit to, and made a part of, her complaint, the decree of the Drew Chancery Court; also certificates of the records of Drew, Ashley and Union counties, respectively, showing that the decree had been recorded in those counties, and also the order of the Drew Chancery Court showing that the appeal prayed therefrom had been dismissed. Mrs. Parkinson alleged, among other things, that in spite of the decree and the proceedings had thereunder, as shown by the exhibit attached to the complaint, the Commissioner of State Lands, Highways and Improvements threatened to issue deeds to lands embraced in the decree mentioned, to those who might apply to him for the purchase of the same from the State. Mrs. Parkinson alleged that the Commissioner was in receipt of applications, accompanied by the purchase price, from persons who do not claim by, through, or under her, for the purchase of various parcels of land from the State as swamp lands. She alleged that any deeds which he might issue would cloud her title and the title of those to whom she might convey. She prayed that the Commissioner be required to show the decree of the Drew Chancery Court above referred to on the records of his office, and that he be enjoined from issuing deeds to any of the lands embraced in that decree.

Herbert R. Wilson, Commissioner of State Lands, Highways and Improvements, was made defendant in the action. He, through the Attorney General, entered his appearance and demurred to the complaint, setting up, among other things, that the complaint failed to state a cause of action; that the court was without jurisdiction of the subject-matter. The cause was heard upon the demurrer, and, the defendant refusing to plead further, the court entered a decree perpetually enjoining the defendant from issuing deeds or other instruments of conveyance affecting the lands embraced in the decree of the Drew Chancery Court entered January 4, 1917, and directing the Commissioner to execute to the plaintiff, Mrs. Parkinson, a deed or other instrument of conveyance in the name of the State of Arkansas, to each and all the tracts and parcels of land to which her title was quieted by the decree of January 4, 1917, and to enter upon the records of his office a memorandum of the disposition made of such lands by the decree of the Drew Chancery Court of January 4, 1917, to the end that the records of his office might show that the State of Arkansas does not have or claim any right, title or interest in and to any of said tracts of land embraced in that decree. From the decree is this appeal.

1. This appeal is from the decree of the Drew Chancery Court between the same parties in interest and pertaining to the same subject-matter that was embraced in the original decree of the Drew Chancery Court of January 4, 1917. By this action the appellee seeks to enforce that decree, by enjoining the appellant from selling any of the lands involved in that decree, and by entering upon the records in his office a memorandum or notation showing the effect of the decree of the Drew Chancery Court as to the lands that were the subject-matter of that decree. The allegations of the complaint bring it well within the original and undoubted powers of a court of chancery to entertain an action ancillary to the original proceeding in the same, or a different, court, and dependent upon such proceeding, and which has for its purpose the enforcement of a judgment or decree previously rendered, in order that complete justice may be done to the parties in interest, as the exigencies of the case may require. 10 R. C. L. p. 357, § 106; Coltrane v. Templeton, 106 F. 370 at 370-74, and cases there cited. 21 C. J., § 867.

"Where a decree is incomplete and ineffective for want of provision of any means for its execution, a bill in equity will lie to supply the imperfection so as to render the decree effective. For the purpose of determining whether there is ground for equitable interposition, the court may look to the real nature and character of the decree as it may appear in the light of surrounding circumstances." Gay v. Parpart, 106 U.S. 679...