Jerome Hardwood Lumber Co. v. Jackson-Vreeland Land Corp.

Wood, J. The case of Jerome Hardwood Lumber Company et al. v. Jackson-Vreeland Land Corporation, E. Gr. Munsell, A. W. Askins and A. A. Dixon, was prosecuted to final decree in the Chicot Chancery Court on January 20, 1922, an adjourned day of the regular November term of said court. On May 1, 1922, the November term of said court having lapsed, E. Gr. Munsell, A. W. Askins and A. A. Dixon filed their motion to vacate the decree above mentioned. The motion to vacate contained allegations relied upon by proponents in justification of their prayer. On September 7, 1922, respondents filed an answer and cross-complaint to the motion to vacate, wherein they prayed affirmative relief. On September 13, 1922, a day in vacation, proponents dismissed or withdrew their motion. On November 6, 1922, a day of the November term of the court, respondents prayed judgment upon the cross-complaint. The above is a brief statement of the facts made by the 'Chancery court upon which it entered a final order, dismissing the cross-complaint of the Jerome Hardwood Lumber Company on the ground that the court was without jurisdiction, from which order is this appeal. The ruling of the chancery court was correct. Section 6290 of Crawford & Moses’ Digest provides, “the court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order,” on certain grounds therein enumerated. Section 6292 provides, “the proceedings to vacate or modify the judgment or order on the grounds mentioned * * * shall be by complaint, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the part}^ applying was defendant. On the complaint, a summons shall issue and be served, and other proceedings had as in an action by proceedings at law.” Section 6293 provides, “a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered.” ■Section 6294 provides, “the court may first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action.” In the case of Knights of Maccabees of the World v. Gordon, 83 Ark. 17-21, the court, having under review proceedings under this statute, said: “The statute provides that a complaint shall be filed, and, after issue and service of summons, other proceedings shall be had as in proceedings at law. Accordingly, if an answer should be filed denying the existence or truth of the defenses alleged in the complaint, it would devolve upon the plaintiff to adduce some evidence to sustain his complaint in this respect. For the statute expressly provides that a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered, etc. It would necessarily follow that, if the judgment could not be set aside upon motion or complaint, evidence must be heard by the court before it could adjudge that there is a valid defense. But, as the truth of the defenses are not finally tried in the proceedings to vacate the judgment, enough evidence to make a prima facie showing of the truth or existence of the defenses would be sufficient to authorize the court to vacate the judgment. When this is done, the judgment should be set aside and a new trial granted in the action in which the judgment was rendered.” These statutory provisions show clearly that a cross-complaint asking affirmative relief, in answer or response to the motion or complaint to vacate, is not contemplated. Such an action would be entirely beyond the scope of the issue raised by the special statutory proceeding to vacate a judgment or final order. ' The only issues that can be raised under this -statute are, first, whether or not there exist the grounds alleged for vacating the judgment, and second, whether or not there is a valid defense to the action. The court, under the express terms of the statute, does not come to the issue as to whether or not there is a valid defense until it has first determined whether or not 'there are any grounds to vacate the judgment. See Knights of the Maccabees v. Gordon, supra; Ryan v. Fielder, 99 Ark. 374; Smith v. Minter, 120 Ark. 255. Since the court must first determine whether any grounds exist for vacating the decree, when the complaint setting forth such grounds is dismissed there is no longer a cause of action pending for vacating the judgment. The issue as to whether'or not there is a valid defense necessarily falls wlien the proponent or plaintiff withdraws or dismisses his motion or action to vacate, and the defendant in the action cannot, by any answer or cross-complaint, compel the plaintiff to litigate •the issue as to whether or not any grounds exist to vacate the judgment. The excellent written opinion handed down by the chancellor in this case shows a clear comprehension of this statutory proceeding when he said: “A motion to vacate, having been withdrawn before submission, robs the court of any pleading’ whereby it could determine whether or not there were sufficient grounds to vacate the decree, a condition precedent to the filing of a pleading such as is offered by respondent. Such pleading is in no way responsive to the issue raised by the motion to vacate. It was premature in that it had no place in the files of the court until after the decree had been vacated.” In 23 Cyc. 958, it is said: “The party seeking to sustain a judgment, as against a motion to set it aside, may present for the consideration of the court affidavits in opposition to those of the moving party, in regard to the alleged grounds for vacating the judgment or the matters set up in excuse of. defendant’s failure to make his defense in due time, provided such counter-affidavits set forth facts, and not merely matters of inference, conjecture, or belief; but the affidavit of merits cannot be thus controverted. As it is only required to show a prima facie defense, and the court is not to inquire into its truth, counter-affidavits as to the facts of the defense are not admissible.” See also 15 R. C. L. 717. To construe the act as contended for by learned counsel for the appellees would be to annul § 6294, C. & M., supra, and would campel’the court to hold the cause in order to give the defendant in the action to vacate an opportunity to try out the issue raised by his cross-complaint. Such procedure, as already stated, is not contemplated in an action under the statute to vacate a judgment or final order. The doctrine of Coats v. Milner, 134 Ark. 311, and the other eases upon which the appel-lees rely, have no application to actions brought under the above provisions of onr statute. Let the decree be affirmed.