Price v. Hemingway

Kirby, J., (after stating the facts). Appellants concede the right of appellees, whose judgment survived against them, to revive the cause against the heirs of J. A. Price, deceased, and contend correctly that the court erred in setting aside the decree of foreclosure in making such order of revival. Sections 1062-65, 6311, C. & M. Digest ; Thompson v. Lee, 174 Ark. 868, 296 S. W. 706; Hill v. Brittain, 178 Ark. 784, 12 S. W. (2d) 869. The decree erroneously vacated had been entered at a former term of the court against J. A. Price, foreclosing the lien against his lands only, and there was no giround alleged or existing for its vacation, but only proper allegations for the revival of the cause against his heirs, who succeeded to his interest, necessary to be had for execution of their judgment, which survived to appellees 'against said heirs. Section 6311, C. & M. Digest; DeYampert v. Manley, 127 Ark. 153, 191 S. W. 905. It was necessary that the parties in interest be before the court for execution of the decree, since the foreclosure could not be effected without a sale of the lands and confirmation thereof, and the action had to be revived in the name of the successors to the title to give them an opportunity to be heard relative thereto. The heirs only succeeded by inheritance to the rights of the decedent, J. A. Price, and the valid decree of foreclosure of the 'mortgage against these lands only survived to appellees. None of the parties, the heirs or the judgment creditors, had any right tó the vacation of the decree, and the court erred in making any such order. The said decree vacating the judgment is reversed, and the cause will he remanded, with directions to proceed regularly to its execution and the foreclosure against the lands after proper revival of the cause has been completed. It is so ordered.