Grider v. Corbin

The plaintiffs appeal from a judgment entered on the report of a referee in a suit on a judgment of the state of Arkansas. The judgment sued on is attacked for want of jurisdiction, and the judgment appealed from cannot be sustained unless the defendants have negatived every supposable fact which would have authorized the exercise of jurisdiction by the court that rendered said Arkansas judgment. In 1892 an action was brought in the circuit court of said state by a judgment creditor of the plaintiffs’ assignor, one Lanier, against said Lanier, the members of the Corbin Banking Company, a copartnership of which the defendants’ testator was a member, and other defendants, praying that certain trust deeds executed by said Lanier to the said Corbin Banking Company be adjudged void, or at least subordinated to the lien of the plaintiff’s judgment. Said Lanier filed a cross-bill, bringing in the Union Mortgage & Trust Company, a London corporation, as an additional defendant, and alleged that the notes in suit, aggregating $41,792.84, together with the trust deeds given to secure their payment, held by said Union Mortgage & Trust Company, were void for usury • exacted by said Corbin Banking Company, and were given in part settlement of an account between said Lanier and said Corbin Banking Company which contained fraudulent charges and suppression of credits, and judgment was prayed against the defendants for the sum of $25,000, and for an adjudication that said securities were void. One of the allegations of said cross-bill related to a note of $1,500, payable to the defendants’ testator, which was given subsequent to all of the other transactions in suit, was entirely disconnected therefrom, and did not concern the other parties. The defendants’ testator demurred to the cross-bill on the ground of the pendency of another action. The demurrer was sustained with leave, however, to discontinue said former action, and said action was discontinued. The said Union Mortgage & Trust Company, the holder of all the securities, except said note of $1,500, held by the defendants’ testator, answered said cross-bill, putting in issue all its allegations and asking for the foreclosure of said trust deeds. The attorney of the members of said Corbin Banking Company was also the attorney of said Union Mortgage & Trust Company, but the former did not plead to said cross-bill, expept as aforesaid. The trial of the issues raised by the answer of said Union Mortgage & Trust Company at the May, 1894, term of the circuit court, a court exercising concurrent jurisdiction in law and equity, resulted in a judgment of said court which recited the appearance of all parties by their attorney, dismissed the cross-bill of the plaintiffs’ assignor, and decreed a foreclosure of said trust deeds held by said Union Mortgage & Trust Company. Among other things, the court found that the notes in suit were executed by said Lanier in consideration of the nominal amount thereof loaned to him, and' that he was indebted to the said Corbin Banking Company in the sum

“The court doth further find that this cause was argued and submitted at the May term, 1894, of this court and by the court taken under advisement and that since said time the defendants Austin Corbin and W. G. Wheeler have died.”

Each side seeks to support its contention by resort to the statutes and decisions of the state of Arkansas, which are in evidence. The defendants assert that the chancery court did not have jurisdiction either of the parties or of the subject-matter, while the plaintiffs claim that the judgment of the circuit court only related to the defendants who had answered; that by misprision of the clerk a judgment generally dismissing the cross-bill was entered, whereas the dismissal should have been confined to the defendant Union Mortgage & Trust Company; that the judgment of the Supreme Court only related to the parties to the appeal, and that, in any event, the issue raised by the allegation of said cross-bill relating to the $1,500 note was not adjudicated upon, but remained pending and undetermined in said court; and that as the chancery cotirt, the successor to the circuit court, had jurisdiction of said subject, the judgment which it rendered cannot be attacked collaterally. It may be granted that we are to determine the jurisdiction of the court by the law of the state of Arkansas at the time of the exercise of such jurisdiction.

The referee has found that the questions presented by the allegations in respect of said $1,500 note, remained pending and undetermined before said circuit court, and thereafter before said chancery court up to and including the time of the rendering of the judgment

It is also claimed by the appellant that the only proof respecting the 1894 judgment relates to the judgment as entered by the clerk, and that, for the purpose of supporting the jurisdiction of the court now attacked, we must suppose, in the absence of proof to the contrary, that the judgment as pronounced by the court simply dismissed the cross-bill as to the defendant Union Mortgage & Trust Company, and that by misprision of the clerk it was entered as a dismissal generally, but the difficulty with this contention is that the judgment as entered purports to have been signed by the judge, and the record, in the absence of anything to impeach it, proves the judgment. The judgment sued upon is proven by the exemplified copy of the record. To deny to such a record the probative force, to which it is entitled, is in effect to deny the judgment the faith and credit which the appellants assert we are bound to give the judgment in suit. The fact that one of several defendants in an equity suit makes default does not necessitate a judgment against him. An answer of a codefendant going to the whole bill puts the plaintiff to his proof, and, if it is not shown that he is is entitled to relief, he is not entitled to judgment even against the defendant in default. This question is discussed and the rule fully recognized by the Supreme Court of Arkansas in a case in which there had been an interlocutory judgment by default against one of several defendants, and it was held that such interlocutory judgment must abide the result of the final decree. Aikin v. Harrington, 12 Ark. 391 . The question whether the answer of the Union Mortgage & Trust Company went to the entire equity of Lanier’s cross-bill and whether he was entitled to judgment against the members of the Corbin Banking Company, irrespective of the defense of the said Union Mortgage & Trust Company, was before the circuit court, at the May, 1894, term. That court had jurisdiction of the par

As the parties evidently supposed at the time, and as the foregoing recital doubtless leads us all to expect, the decisions of the state of Arkansas conclusively show that according to the law of that state the judgment of May, 1894, was final and conclusive until reversed on appeal. The appellants argue that the judgment in suit was an amendment of the judgment of May, 1894, and that the court rendering it had jurisdiction to correct and amend its former judgments or decrees. Said judgment does not purport to be an amendment of a former judgment. On the contrary, it purports simply to adjudicate differently on the same record. The judgment of Í894 dismissed the cross-bill. The judgment of 1899 granted a portion of the relief prayed for by said cross-bill. That was not an amendment or correction of a former judgment. So far as it related to the same matter, it was a reversal of the former judgment, and the authorities relied upon by the appellants do not sustain such exercise of jurisdiction. Those authorities are Rogers v. Brooks, 31 Ark. 194 , Freeman v. Mears, 35 Ark. 278 , and Portis v. Talbot, 33 Ark. 218 . The first two cases simply held that upon an affirmance in the Supreme Court of a decree for money the decree goes against the

While fully recognizing the power of the courts over the record of their own judgments and' the right to correct such record so as to make it speak the truth and conform to the judgment actually rendered, the courts of Arkansas by an unbroken line of authorities have settled the law of that state in harmony with the rule, which almost universally prevails, that a judgment once pronounced becomes final and conclusive between the- parties, unless corrected or reversed on appeal. In Smith v. Stinnett, 1 Ark. 497 , it was held that an order setting aside a final judgment by default made at a term subsequent to the one at which such judgment was rendered was wholly illegal and without influence to overthrow such judgment. This was placed upon the ground that, the term at which the judgment was rendered having ended, the court lost jurisdiction. In the case of Mayor v. Bul'ock, 6 Ark. 282 , it was held that the parties could not even by consent confer jurisdiction to set aside a default judgment rendered at a former term of the court. In Walker v. Jefferson, 5 Ark. 23 , it was held that after the expiration of the term at which a rule for a new trial was to be heard the court lost control of the cause, and that it could not thereafter set aside a new trial previously granted, enter a nolle prosequi as to two defendants, and render judgment against the others. In Smith v. Dudley, 2 Ark. 60 , the plaintiff obtained an order reciting the loss or destruction of a judgment rendered at a previous term and directing that it be reinstated on the records of the court, and it was held that the judgment so entered was void for want of jurisdiction, that decision was put upon the ground that the original judgment could not be proven by parol, and that the judgment directed to be entered must be treated as rendered at a term after the court had lost jurisdiction of the cause. In Ashley v. Hyde, 6 Ark. 100 , 42 Am. Dec. 685 , the Supreme Court held that even it did not have jurisdiction, after the expiration of a term at which a judgment was pronounced, to set it aside on a petition for a rehearing, and that its proceedings in undertaking to do that were extrajudicial, mere nullities, saying:

“But the power of a court to vacate or annul its judgments and decrees rendered at a previous term presents a question of more serious doubt It is not pretended that the circuit court or other inferior tribunals possess such power, but we believe it is conceded that, their judgments being rendered and the term having expired, the power of the court over them is 'forever gone, except so far as may be necessary to supply omissions through mistake or neglect by nunc pro tunc orders.”

In Byrd et al. v. Brown et al., 5 Ark. 709 , it was held that the statute authorizing the circuit court to recall judgments upon forfeited delivery bonds and enter a judgment of revocation was unconstitutional, as interfering with the exclusive appellate jurisdiction of the Supreme Court. The propositions stated supra are reiterated in Greer v. State Bank, 10 Ark. 455 , Biscoe v. Sandefur, 14 Ark. 568 , Brady v. Hamlett, 33 Ark. 105 , and in many other cases which might be cited, all holding that the proceedings at a term of court subsequent to that at which the judgment was rendered are coram non judice. Many of these decisions go much further than is necessary to establish the want of jurisdiction in the court after the May, 1894, term, to vacate, annul, or reverse the judgment then rendered.

But it is said that the referee has found that according to the law of Arkansas the circuit court in the exercise of its power of amendment has the power to make a new order virtually reversing the judgment corrected. It is plain that these findings of the referee refer to the power of the court to correct or amend the record, and not to its power to change the judgment pronounced. Power to change the record is one thing; power to change the judgment actually rendered, quite a different thing. Treating the record as proof of the judgment pronounced, as we must for the reasons stated supra, it is plain that according to the law of Arkansas the circuit court upon the expiration of the term at which the judgment of May, 1894, was rendered lost jurisdiction of the subject-matter of that suit, and we think it clear that the chancery court in 1899 did not have jurisdiction either of the subject-matter or of the parties.

The plaintiffs’ testator had then been dead three years. No attempt was made to revive the action against his personal representatives, doubtless for the reason that the statutes of Arkansas prohibit such an application without the consent of such representatives, unless made within one year from the time it could have first been made. Sand. & H. Dig. St. Ark. § 5935. In the case of the State Fair Ass’n v. Townsend, 69 Ark. 215 , 63 S. W. 65 , an appeal was dismissed for failure to .revive the action within a year after it could have been received. But the appellants rely upon the finding of the referee to the effect that according to the law of Arkansas, "where a cause is submitted to a court for its determination during the lifetime of all of the parties and after such submission and before decision a party dies, the court has power upon its own motion to render judgment nunc pro tunc as of a day prior to the death of such party.” It is undoubted that such practice was warranted by the common law of England which was adopted as a part of the common law of Arkansas, and that the power of courts to render judgments nunc pro tunc as of a day prior to the death of a party has been

“On this day comes F. R, Lanier * * * and this cause comes on for final hearing on the cross-bill and exhibits and the depositions of said Lanier,” etc.

It is also disproved by the judgment of May, 1894, which shows that, instead of taking the case under advisement, the court dismissed the cross-bill. It is also inconsistent with the position taken by the appellants that the questions respecting the Corbin Banking Company raised by Lanier’s cross-bill remained pending and undetermined. If the question was submitted to the circuit court at said May term, it was decided adversely to Lanier. If it was riot submitted to said court, but remained pending and undetermined, it came before the chancery court as an original question, and it is quite.plain that it was so treated by said court. Thus considered the chanceiy court had no jurisdiction of the parties except the action were revived against the personal representatives of the deceased party. And, if absolute verity is accorded the recitals of the judgment sued on, the appellants are in no better situation, because, if it is true that the cause was submitted to and taken under advisement by Judge Riddick in May, 1894, Judge Robertson could not render a judgment in 1899 upon said submission, but a mistrial resulted upon Judge Riddick’s ceasing to be a circuit judge. Thus the appellants are in the position of having to depend upon a recital which, if true, establishes the want of jurisdiction in the court to render the judgment sued on.

It may be conceded, as argued by the appellants, that the judgment cannot be attacked collaterally for irregularities, but it is only conclusive upon the general question involved in the action or proceeding concerning which the court had the power to adjudge. Hunt v. Hunt, 72 N. Y. 217 , 28 Am. Rep. 129 ; Smith v. Central Trust Co., 154 N. Y. 333 , 48 N. E. 553 . The court rendering the judgment in suit had no jurisdiction to adjudicate upon the general question involved in the action. Its attempted exercise of power was, therefore, a nullity, and the judgment rendered does not import verity even respecting the recitals of fact which go to the question of jurisdiction. Thompson v. Whitman, 18 Wall. (U. S.) 457, 21 L. Ed. 897 .

The judgment should be affirmed, with costs. All concur.