Minick v. Ramey

Hart, J., (after stating the facts). J. H. Minick first seeks to reverse the decree of the chancery court on the ground that it erred in not setting aside the foreclosure decree because he had not been served with summons in the case. Conceding that the evidence in the record 'overcomes the prima- facie case of service by the recitals of the decree, we do not think that the court erred in refusing to set it aside. It will be noted that the motion of J. H. Minick to set aside the decree alleges that a decree was rendered against him for approximately $1,000 in excess of the amount due by him to Ramey. No proof whatever to sustain this allegation was offered. It is well settled in this State that judgments or decrees will only be reversed for errors prejudicial to the rights of the party appealing. Therefore, a party moving to set aside a judgment or decree must not only state his defense thereto, but must make a prima facie showing of merit in order that the court may determine whether he was injured by not being permitted to have the benefit of it. The rule is that a court of equity will not set aside a decree until it has been found and adjudged that the defendant had made a prima facie showing of a valid defense to the suit; and, if it finds a partial defense, it will modify the decree to that extent. Robinson v. Arkansas Loan & Trust Co., 74 Ark. 292; Citizens’ Bank of Lavaca v. Barr, 123 Ark. 443; Montague v. Craddock, 128 Ark. 59; and Davis v. Ferguson, 164 Ark. 340. Thus it will be seen that the court was' right in refusing to set asido the decree, because .no showing whatever was made or offered to be made by Minick to establish the alleged, fact that a decree had been rendered against him for any amount in excess of the indebtedness which he owed to Ramey. The next gnound relied upon for a reversal of the decree is that the chancery court erred in ordering the commissioner to amend his report of sale to show that Ramey only bid $700 for the land sold under the foreclosure decree. On this point Ramey testified that he only bid $700 for the land, and that the same was sold subject to two prior mortgages; that the' amount of his bid of' $700’, added to the principal and interest of the two prior mortgages, amounted to $3,625.50; that the land was not worth more than this amount, and that he would take for it now the amount of money which he has invested in it. : It is true that the commissioner making the sale and a son of J. W. Karnes, one of the defendants, testified that R.‘ C. Ramey bid $3,625.50 for the land; but it is evident that Karnes misunderstood the bid. As we have just seen, Ramey testified that the amount of his bid, together with the amount of the two prior mortgages, amounted to $3,625.50. While the commissioner states that Ramey bid the sum of $3,625.50, his whole testimony on the subject shows that he understood that this amount included the two prior mortgages on the land. The commissioner stated that the land was sold and 'Cried for sale subject to the two prior mortgages; that, before the sale, Ramey came to his office and said that he was going to hid $700 subject to the prior mortgages, and that, when Barney afterwards hid, he believed that he only intended to hid $700 snbject to the prior mortgages. Under this state of the record the chancery court properly ordered the report of the commissioner to he amended and approved, and confirmed it as amended. The result of onr views is that the decree was correct, and it will he affirmed.