Smith v. Minter

Kirby, J., (after stating the facts). (1) Appellants contend that the court erred in refusing to vacate the judgment and insist that the allegations of the complaint were sufficient and that a good defense was shown to exist. In order to vacate a judgment for fraud practiced by the successful party obtaining it, it is necessary not only that the defense to the action be sufficiently alleged, but that it shall be adjudicated that the defense to the action is a valid one, before the judgment is vacated or set aside, the court determining, first, whether the grounds to vacate exist and then the validity of the def ense alleged. The court found that all the interested parties had-notice and opportunity to make defense, that the parties to the suit “were present each by his attorney of record, with full power to act, and that the judgment was a subsisting good .and valid judgment.” (2) Testimony could have been introduced, showing that the attorney consenting to the judgment was authorized to do so, and if appellant introduced any testimony ■tending to show a valid defense, it was not preserved by a bill of exceptions, and this court can not review the question. In London v. Hutchens, 88 Ark. 467, the court said: “The appeal is one from the order refusing to set aside the dismissal of his proceedings for vacation of the judgment for want of prosecution. # * # London had proceeded under the statutes to have it set aside. * * * The record entry indicates that the court had evidence before it, and the presumption is always indulged, in the absence of evidence being brought here, that the evidence would sustain the action of the court. ’ ’ In Young v. Vincent, 94 Ark. 115, it was said: “"Where the record does not contain the evidence adduced at the trial, every intendment is indulged in favor of the action of the trial court, .and this court will presume that every fact susceptible of proof that could have aided, appellee’s case was fully established. The salutary rule of law is that every judgment of a court of competent jurisdiction is pr esumed to be right unless the party aggrieved will maike it appear .affirmatively that it was erroneous.” In Foohs v. Bilby, 95 Ark. 302, the court said: ‘ ‘ The motion to vacate the judgment under section 4431, supra, was heard on evidence, and the evidence which the court heard and on which it acted in .setting aside the judgment in question not being brought into the record, we must presume that every fact necessary to sustain the finding and judgment of the .court was proved that could have been proved. ’ ’ “In the absence of the bill of exceptions, it will be presumed that the court’s findings of fact were based on the evidence, where there is nothing in the record to rebut that presumption. ’ ’ Swing v. Brinkley Car Works & Mfg. Co., 78 Ark. 198. The .allegations of the .answer of the defendant, Nelson, in the first suit .are not proof of the facts therein set up, .and, as already said, the court in this ■ proceeding found that the judgment .attempted to be vacated was valid and subsisting .and that the .attorney confessing it had authority to do so, and it must be presumed in the absence of a bill of exceptions that the court’s findings of fact were based on the evidence, there being nothing in the record to rebut that presumption. The judgment is accordingly affirmed.