Berringer v. Stevens

Wood, J. On the 6th of August, 1919, the appellant instituted an action against the appellees. She alleged that F. iB. Stevens was indebted to her in the sum of $760.30, as evidenced by a judgment rendered in Alabama, of date September 25, 1905; that Stevens had deeded his minor children certain lands; that such deed was without consideration and therefore, void. She prayed that the deed be set aside and the lands subjected to her judgment. Service was duly had upon the appellees, and guardian ad litem was appointed for the minor defendants, who filed an answer for them. On the 18th day of September, at the July term, 1919, of the Lee Chancery Court, judgment was rendered in favor of the appellant (plaintiff in that suit) against F. B. Stevens and the other appellees, who were the defendants, for appellant’s debt against F. B. Stevens, canceling the conveyance made by Mm to Ms cliildren and subjecting the lands described in the deed to the payment of the judgment. On December 19, 1919, the appellees instituted tMs action against the appellant to set aside the above judgment under the authority of section 4431 of Kirby’s Digest, subdivisions 4th, 7th and 8th, as follows: “4th. For fraud practiced by the successful party in obtaining of the judgment or the order. “7th. For unavoidable casualty or misfortune preventing the party from appearing or defending. “8th. For errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in section 6248.” The appellees alleged that they had a meritorious defense to the action in which the judgment, which they now seek to set aside, was rendered; that the judgment sued on, which was the foundation of the action by the appellant against the appellees, was rendered on the 25th day of September, 1905, and was barred by the ten-year statute of limitations at the time action was begun on it against the appellees. They further alleged specifically the facts upon which they relied to constitute unavoidable casualty, which will be referred to later on. Appellees prayed that the decree of the chancery court, which had been rendered in favor of appellant against them, be set aside. The appellant answered, and among other things denied that the decree obtained by her in the chancery court against the appellees was obtained by fraud practiced upon the court; denied that there was no proper defense made for the minors; and denied that the plaintiffs were prevented by unavoidable casualty from appearing and defending against her action. She alleged that the guardian ad litem in all things complied with his duties under the law and made a proper defense for his infant wards. Appellant denied that appellees had a meritorious defense to the action in which her judgment was obtained against them. She further denied specifically the facts as set forth in. the complaint to constitute an unavoidable casualty. After hearing the testimony, the court rendered a decree in favor of appellees against the appellant, granting to appellees the relief prayed in their complaint. From that decree is this appeal. The judgment of the Lee Chancery Court, which the appellees seek by this action to set aside, divested the title out of such of the appellees as were minors at the time that decree was rendered. The deed from F. B. Stevens to his minor children had the effect of vesting title in them. This deed, was good between the parties. Since the decree of the chancery court in favor of the appellant against such of the appellees as were minors at the time that decree was rendered had the effect of divesting them of their title to the lands in controversy, and since they had a personal interest in the lands, to divest themselves of which would have required a conveyance on their part, the present case comes within section 6248 of Kirby’s Digest. That section is as follows: “It shall not be necessary to reserve in a judgment or order, the right of an infant to show cause against it after attaining full age; but in any case in which, but for this section, such a reservation would have been proper, the infant, within twelve months after arriving at the age of twenty-one years, may show cause against such order or judgment.” Construing the above statute in Blanton v. Rose, 70 Ark. 415, we said: “Where the effect of the decree is to divest the infant of an interest in land, or where a conveyance is required of an infant in lands where he has a personal interest under the ancient chancery practice, it would have been proper in such cases to reserve in the decree a day for the infant to show cause against it after becoming of age.” In Martin v. Gwynn, 90 Ark. 446, we held that the above section applies to a suit against an infant to cancel a deed. See also Purcell v. Gann, 113 Ark. 332; Estes v. Luckey, 103 Ark. 97-104. But, under section 4434 of Kirby’s Digest, tbe appellees were not entitled to have the decrees vacated until they proved a valid defense to the action in which that decree was rendered. The word “valid,” as used in the section last referred to, is synonymous with the word “meritorious.” State v. Hill, 50 Ark. 458; Broadway v. Sidway, 84 Ark. 527; Simpson & Webb Furniture Co. v. Moore, 94 Ark. 347; Quigley v. Hammond, 104 Ark. 449-458. Appellees set up and proved that the original action, in which judgment against them was rendered, was barred by the ten-year statute of limitations. Was this a valid defense? The action in this case to set aside the decree of the chancery court of Lee County, under sections 4431 and 6248, supra, was a direct and not a collateral attack upon that judgment. The original judgment rendered against the minor defendants was not taken by default against them. On the contrary, the facts herein show that they had answered by their guardian ad litem and had set up the ten-year statute of limitations. So, the case to as the appellees, who were minors at the time the judgment was rendered against them, bears no analogy to cases where a party, although sued and duly served with process, ignores the proceedings and allows judgment of default to be rendered against him. Under section 6248, supra, the appellees, who were minors at the time judgment was rendered against them, are entitled to set up and prove that the statute of limitations was a meritorious defense to the action in which judgment was rendered against them. The appellee, F. B. Stevens, as well as the other appellees, were entitled also to have the judgment set aside because of unavoidable casualty. The facts concerning this are substantially as follows: The firm of Daggett & Daggett is composed of J. B. and C. E. Daggett. While the firm does not accept separate employment, nevertheless, it was the custom of their office for each member of the firm to handle individual matters especially intrusted to each., unless they were called in consultation. F. B. Stevens was anticipating that he would he sued by the appellant and had consulted J. B. Daggett and put him in possession of all the facts and records necessary to his defense in the event that he was sued. In the early part of July, 1919, J. B. Daggett, on account of illness in his family, was excused by the chancellor from attendance at the regular term of the Lee Chancery Court which convened on July 21, 1919. The chancellor informed J. B. Daggett that all business in which he represented clients would be passed, and that there would be no adjourned day of the chancery court held in September on account of the weather conditions and the illness of the chancellor’s wife. A suit by appellant against the appellee was filed on August 6th, service was had on August 12th, and Stevens immediately thereafter called at the office of Daggett & Daggett to see J. B. Daggett and found him absent in Colorado in attendance upon his sick child. He was told by C. E. Daggett to return about September 20th; that J. B. Daggett was expected to return home about that time. When J. B. Daggett returned on September 19, 1919, he found on his table in the office a copy of the complaint in the case of Berringer v. F. B. Stevens et al., with a memorandum thereon in his' brother’s handwriting that Stevens would confer with him in reference to the case on the 20th. A few minutes after his return to his office, he was informed that a decree had been rendered in the case of Rebecca Berringer v. F. B. Stevens et al. On the morning of September 18, 1919, C. E. Daggett was excused by the chancellor from attendance upon the court during the remainder of the September term, and on that day the decree was rendered in the case of Berringer v. Stevens et al. Upon the above facts, the chancellor found that the appellees were prevented by unavoidable casualty from appearing and defending the action, and the court was correct in so finding. For it is obvious that the court at the time it rendered the judgment in favor of Berringer against Stevens et at., either did not know that the firm of Daggett & Daggett had been employed to represent Stevens, or else, if advised of such fact, the judge had overlooked the same. For, with the knowledge that he had excused both members of the firm from attendance upon" the court, it is unreasonable to- conclude that he would have permitted a judgment to be taken by default against F. B. Stevens in the absence of both members of the firm of Daggett & Daggett, who represented him. Upon this state of record, the court doubtless concluded that it was through the acts of the court itself, that F. B. Stevens had not filed an answer and was not present in person, or by counsel on the day the default judgment was rendered against him, and that, as far as Stevens was concerned, it was an unavoidable casualty. It occurs to us that such is the fact, and that Stevens had therefore had no opportunity to plead and set up his defense of the statute of limitations. “An act of the court shall prejudice no man, is a maxim founded,” says Mr. Broom, “upon justice and good sense.” Broom’s Legal Maxims, p. 99; Thweatt v. Knights and Daughters of Tabor, 128 Ark. 269. The defense of the statute of limitations is a valid -or meritorious one. Lilly-Brackett Co. v. Sonneman, 157 Cal. 192; 21 A. & E. Ann. Cas. 1279, and case note 1282. The present case is clearly differentiated by the facts from the cases of Pennington v. Gibson, 6 Ark. 447, and State v. Jennings, 10 Ark. 428-438, upon which the counsel for appellants rely. The decree is in all things correct, and it is therefore affirmed.