Byrkett v. Grand Lodge Independent Order of Odd Fellows

McCULLOCH, C. J. Appellant Fairbelle Byrkett was the widow of A. W. Shirey, who died in Lawrence County, Arkansas, in the year 1910, and this appeal is from an order of the chancery court of Lawrence County striking out a bill of review filed by her attacking the correctness of a consent decree of that court rendered in the year 1910 dividing the property of said Shirey. It appears from the allegations of the bill of review filed by appellant that Shirey left a will whereby he bequeathed and devised all of his property to the Grand Lodge of Independent Order of Odd Fellows, but tbe will was contested by tbe heirs of Shirey, and appellant elected to take ber dower as widow; that after tbe filing of tbe contest of the will tbe widow and tbe beirs, and tbe Grand Lodge of Odd Fellows entered into a compromise written agreement whereby appellant as widow should take forty per centum of tbe gross value of the estate, each of tbe two beirs ten per centum, and tbe Grand Lodge of Odd Fellows forty per centum, after payment of debts; that in order to carry out the contract a joint suit was filed in tbe chancery court for tbe division of tbe property and tbat appellant’s attorneys, whom she bad previously employed, assumed tbe authority to enter into a new contract changing the terms of the old contract so tbat appellant was to get only forty per centum of the net value of the estate after payment of debts. Appellant alleged in the bill of review tbat she bad not authorized ber attorneys to change the contract, and tbat she was sick and unable to attend tbe session of tbe chancery court at which tbe final decree was entered by consent of all parties dividing tbe estate in accordance with tbe provisions of the'last contract. Tbe bill of review was stricken out on tbe ground tbat it bad been filed without permission of the court. It is settled by the decisions of this court tbat it is not necessary to obtain leave of tbe court to file a bill of review founded on errors of law apparent on tbe face of tbe record, but tbat it is necessary to first obtain leave of the court before filing a bill of review based on newly discovered evidence. Long v. Long, 104 Ark. 562. Counsel for appellant contend tbat tbe present proceedings fall within the first rule, and set forth error in tbe proceedings, apparent on tbe face of tbe record. We do not think tbat counsel are accurate in their analysis of tbe charge set forth in tbe bill, for tbe statement does not make out a charge of error on tbe face of tbe record. The two contracts and tbe decree of tbe court, with all of its recitals as to appearances of the parties is set forth in the bill of review, but the substance of the charge is that the attorneys exceeded their authority in entering into the new contract and.in consenting to the new decree, and that appellant was sick and unable to attend the session of the court. This in effect is an allegation of additional evidence to show the lack of authority on the part of the attorneys and the inability of appellant to attend the trial to protect her rights. From the facts recited in the record iself, the court could not. have entered any other decree than the one it did render dividing the property in accordance with the terms of the agreement. The matters set forth in the bill of review merely tended to show that evidence could be adduced, if an opportunity was given, to show that the decree was erroneous because the attorneys had no authority to enter into a compromise agreement. It is not contended that there was any abuse of the court’s discretion in refusing to allow the bill of review to be filed; in fact, the present appeal is not from an order of the court refusing to grant permission to file a bill of review, but the appeal is to test the question of the right» to file a bill of review without obtaining the court’s consent. Affirmed.