Barnett Bros. v. Henry

HART, J., (after stating the facts). (1) This is in effect a proceeding after the expiration of the term at which ia judgment was rendered to modify or set it aside under section 4431 of Kirby’s Digest and to quash an execution alleged to be improperly issued on it under section 3224 of Kirby’s Digest. A judgment or decree may be vacated or modified after the expiration of the term for fraud or mistake in its procurement in a proceeding instituted for that purpose in the court in which it wias rendered. Montague v. Craddock, 128 Ark. 59; Dale v. Bland, 93 Ark. 266, and Wood v. Stewart, 81 Ark. 51. This brings us to a consideration of the question of whether the personal judgment against Henry and Smith in the replevin suit brought by E. O. Barnett Bros, against Lee Jones was procured by fraud or mistake. E. O. Barnett Bros, brought replevin against Lee Jones to recover possession of certain personal property which he had mortgaged to them and after he had made default in the payment of the mortgage debt. S. E. Henry claimed one of the mules embraced in the mortgage and was allowed to interplead for it and upon giving a delivery bond, was allowed by the sheriff to retain possession of the mule. E. O. Barnett Bros, did not give the indemnity bond provided for in such cases under section 6865 of Kirby’s Digest. (2) It is true, as claimed by counsel for appellants, that Henry and Smith became parties to the action in the replevin suit when they executed the delivery bond and retained possession of the mules under it and that thereafter they were required to take notice of the subsequent proceedings in the action. It can not be said, however, that they were negligent in allowing a personal judgment to be rendered against them by default in the action. They could only be required to take notice of and anticipate such orders as the court hiad power to make in that action. The court had no authority to render a personal judgment against them in that action for the balance of the mortgage debt due the mortgagees by the mortgagors. Such a judgment was outside of the scope of the issues made by the pleadings, or which might legally have been made by the fact that they claimed title to the mule. The court could only have properly rendered judgment against them for the delivery of the mule to the plaintiff in the replevin suit or for the value thereof. The personal judgment in the replevin suit against Henry 'and Smith was not warranted and the judgment against them in that case to that extent was void. Therefore under the authorities above cited the court was warranted under section 4431 of Kirby’s Digest in setting it aside as having been rendered by mistake. It is next insisted by counsel for the appellants that the court should not have set aside or modified the judgment in the replevin suit until it was adjudged that there was a valid defense to that action. This claim is without merit for as we have already seen the court was not warranted in rendering a personal judgment against Henry and Smith. Counsel for appellants point to the fact that Henry claimed that he had 'sold the mule to Lee Jones and had retained title in it until it was paid for; that Jones had fully paid Henry for the mule at the time the replevin suit was instituted. The court properly excluded this testimony; for if true it could not affect the rights of the parties to the present suit. All that appellant had a right to do in the replevin suit was that the mule should be delivered to them by Henry. This^ the sheriff testified that Henry offered to do. In any event the sheriff took possession of the mule and sold it under the judgment of the court and the proceeds were applied towards the payment of the judgment of appellants in that action. So it will be seen that Henry relinquished all his right or title in the mule and that it was sold and the proceeds applied towards the payment of the judgment of appellants. In no event then was the court authorized to render a personal judgment against appellees in favor of appellants in the replevin suit. The court therefore was warranted under 'section 4431 of KirbyDigest in setting aside, ¡after the expiration of the term, the personal judgment rendered against appellees in favor of appellants in the replevin suit. So too, under section 3224 of Kirby’s Digest it had the power to quash the execution as having been improperly issued. The judgment will be affirmed.