McClintock v. Lankford

Hart, J. (after stating the facts). This court has held that in the. absence of statutory provisions providing for the rendition of decrees in vacation that a decree in chancery rendered in vacation, although entered on the judgment record, is a nullity. The court has held further that parol evidence is admissible to show that a decree which appears regular on its face was actually rendered in vacation and is consequently a nullity. Jackson v. Becktold Ptg. & Book Mfg. Co., 86 Ark. 591, and cases cited. In this State we have a statute relating to the practice of taking cases under advisement and rendering decrees in vacation. Acts of 1913, page 318. Section 1 of the act reads as follows: “That a chancellor may deliver opinions and make and sign decrees in vacation in causes taken under advisement by him at a term of the court, and, by consent of parties, or of their solicitors of record, he may try causes and deliver opinions, and make and sign decrees therein in vacation. Such decrees, and all other orders and decrees which a chancellor may make in vacation shall be entered and recorded on the records of the court in which the cause or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases. ’ ’ It will be observed that the first part of the section provides that a chancellor may deliver opinions and make and sign decrees in vacation in causes taken under advisement by Mm at a term of the court. The present case does not come within that class. The court can not take a case under 'advisement until it has heard the case in term time. Mr. McOlintock denies that the case was heard by the court at all at the adjourned term in May, 1918. Judge Lankford does not claim that it was heard and taken under advisement. He only states that he presented his side of the case to the court and admits that the court gave Mr. McOlintock twenty days within which to prepare and file his testimony. Hence the case was not taken under advisement at a term of the court within the meaning of the statute. The statute further provides that, by the consent of the parties or their attorneys- of record, the chancellor may try causes and deliver opinions, and make and sign decrees therein in vacation. Mr. McOlintock denied positively that there was any agreement to try the cause in vacation. Judge Lankford states that such an agreement was made. He stated that the court gave McClintock twenty days within which to prepare and file his testimony. Judge Lankford then waited for more than thirty days before he took the matter up with the court. No notice was given McOlintock that the matter would be taken up on the 27th day of June, 1918. McOlintock was not present when the case was taken up on that day. He had all the papers in the case in his office. The fact that the court gave McOlintock twenty days within which to prepare and file his testimony did not constitute an agreement on the part of McOlintock that the case might be taken up on any day thereafter in his absence. He at least should have been given notice so that he might have been present and presented his side of the case. This was not done, and we do not think that even under the testimony of Judge Lankford the chancellor tried the cause and signed a decree therein in vacation by consent of the parties within the meaning of the statute. The undisputed evidence shows that the decree was rendered in vacation, and it was therefore a nullity. Again, it is contended that the decree should not be set aside because no meritorious defense to the action has been presented. We can not agree with counsel in this contention. Even if it was necessary to show a meritorious defense, McClintock testified that Lankford presented to him a statement in which he only claimed something over $300 as the balance due him for an attorney’s fee. He was allowed over twice this amount. According to the testimony of McClintock, he was not entitled to even the $300 claimed by him. McClintock’s testimony constituted a. prima facie proof of the truth of his defense. His defense, if true, was a meritorious one. Holman v. Lawrance, 102 Ark. 252, and cases cited. Finally, it is insisted that the record in the case at bar does not contain all the evidence introduced in the court below, and that the decree of the chancery court must be affirmed under the general rule that it is presumed to be correct, because the chancery court had before it evidence which the transcript does not contain, and on that account this court can not know whether or not the chancellor erred in refusing to set aside the decree entered of record on the 27th day of June, 1918. This general rule has no application in the case at bar. The decree in the court below specifically recites the testimony upon which the case was heard. All the papers that are left out of the transcript are the written statements of Judge Frauenthal and John L. Ingram as to the amount of attorney’s fee that should be allowed Judge Lankford. The decree specifically recites that their testimony only .goes to this point. Therefore the omitted testimony could have no bearing whatever on the issue presented and decided by this court. The transcript contains all the evidence heard by the court below necessary for a determination of the issue presented by the appeal. Turpin v. Beach, 88 Ark. 604. It follows that the decree of the chancellor should be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.