• iiK.J : 1-1 IMt : NATIONAL BK. O ' r MA• NClEIESTEIt V. i / TIRNER. 393 •• • BANK " iiF MAivbi4KSTEK TTJ:RNER. • . :Opinion delivered October. 5 1995. • JUDGMENT--,,-DIRECT ' ArrAdoihricomING! PRESUMFTI0i4 ; OF REGU-• al direct. a..t.ck on. a• Judgment; held , Cient , suffi-- to overturn the statutory presumption :of: service oft .the defeiii • iA •• i • i , t ; ; t ■ h • e ,; r :-ein, ariiing from • • •• f th • e ' recita JUDGMENT— T . • l -of • service. . , • . , DIR . ECT ATTACK—SHOWING OF • MERITORIOUS DEFENSE. 7—• tVidence h'el4 to'make a prima , facie . * showing .of a meritorious defene to authOrle' judgmeni ob ' tained Without service io be Set aside . on. direct attack. • -' ' ' ' ••• • EVIDEN CE — ,LE-1T . Na.—Whe1e ' a' i corieraa 'for the sale Of'a, ' 'Stallicin • .priwided for 'return 'of the; animal .in case he did not iiroVe . ser-Ariceable, a letter from ;purchaser:to seller informing the latter i fhat the horse , was not serviceable,was not a sufficient pima facie ShOWing 'Of' a 'breach of the contra.4. - • • Appeal , from . Lee . Cii .dint Courf; E. D. Rbb'erton, Judge rev , e rs'ed in Part.— — .13Ogle & Shcir'pe, for , appellant. ',John. J.:Moore and Daggett,& Daggett, for .appellee. Hum p unt y s, The mirpose ) of ithis'snit : ivas:tio' set asidejudg ' m ent obtained by ',64J1) ell aiit against appellees on thellth day Of . Aprii; 1921 in/the' circuit 'COUrCof Lee Comity. It was a direct attack upon the ground that the •ndgmerit:Was : 'Obtained withent se'rvice.. On the trial of th eanse, the court set aside the judgMent and . g'ranted a ..new; triaT; froM Whieh ; appellariV PrOseeuted 7 'an 'appeal to this . court . .: The . Supreme 0 ' Ourt 'reversed' the' indgment I because .1,-.he....ipPelleds . failed to .kriow , Show that, 'theY aid-rrot of theprooeedings in the . 'oHginat i action- in 'Which ,hdgnient .Was obtained' againSe •hem. First 'National Bank..v. Dolsheirn.ei, 150'ArlL 464. After theInandate'of the cOurt was filedj the' pleading§ were ainended SO AS 'to : embrace: the . issnes' Of : whether -'appellees had: knoWl edge :of :the pendenley of "the: origii-MI • suit l j beford: the defaUlt udgment-waS 'rendered, , and whether' apPellees' had , h meritorious . defense' to-the Original , , 6anse 'of' action.. The triarcoart dedded • hese issues -1n favOr 'of 'appellees; •and -appellant has p l'9Seented an appeal to' this co surt tfrOm the
394 FIRST* NATIONAL BK. OF MANCHESTER v. TURNER.. [169 judgment setting aside the original judgment and granting appellees a new trial. The first • contention : for a reve • r r saris that the : evidence, adduced was.. , insufficient• to overcome : the- prilita •'facie presumption, , arising from the recital in the-Original jUdgraent,.that . service of , proCeSs Was had UPOn tWOOf the appelleeg , J. F. Turner and'John'P. OarutherS. In addi----tion-,to-the,:feStithony2beating upOn the question 'of set-viee, J F Tirrner ' , .- teStified poSitiVely , that..ho was• not served ' With process, and that . he.,knew nothing ..of the pendency of. the origilial suit or that' the:judgment had. .. been rendered until in . August. of the year following the date Of the judgment. J. , W. : Jones; A deputy sheriff, 'testified that the . Sheriff gave . NM-the original process to serve, but that he knew ' nothing about serVice iipOn, Mr. Turner ; that he .was under -the impression Mr.: Blair served a summons upon Turner. - .,Mr. :Blair testified' that he did not serve process ppon Mr. , Turner. We think the evidence sufficient to'overtnrn the Statutery presumption . of service (in J. F. Turner,.arising from the recital of ser-yice in the priginal judgment!, .The court :erred, however, .in . setting.aside the judgment against, John , P. caruthers, ;for he ,adinitted that he,linew . abont the pendency of- the suit. The, next contention f or 'a reversal , is , that- the evidence . adduced was insnfficient to . ..show , •a :meritorious defense. to the original action on behalf of J: F.: :Turner. The 'basis of the.original suit was notes inithe aggregate sum. of $2,100, which were executed b y J , . F. Turner. and severalT associates for the purchase . of. a , coach stallion. • J. F. Turner testified that he was induced t6 sign . the* , notes upon, the representation . of' a man by the name- of • Rivers, Who,,had the stallion; sin : possession .and who negotiated:the sale, to the effect that the ..purc.hasers :would be individually and: severally' liable to the extent .ok 'only. $300; and, to lend plausibility .to the representation, said party.delitered purchasers . each a certificate of ; membership for one share of stock valued at $300 in the coach . stallion.Beauregard, and, after . the contract was
ARK.] FIRST NATIONAL BK. OF MANCHESTER V. TURNER. 395 executed, accepted a payment of $100 on the first note, and credited it as paid by Caruthers in his individual capacity. J. F. TUrner 6'.1So testified that, after the matUrity of the notes; he . reCeived notice frOni a bank 'in Pallas, Texas, that ,it held 'the notes, 'and liater a nOtice from a bank in Fort Smith that it held the notes.. The indorsement under which appellant .claims title to the notes was in blank. A reasonable. inference'anight have been drawn from these facts . that appellant purchased the notes after maturity. We think appellee,. J. F. Turner, made a prima facie showing of a meritorionS defenise, and that appellant was ,not a, purchaser of the notes in good-faith for value before maturitY. This was: the eXtent of the showing necessary for liim to Make 'in order to set aside the original judgMent. ''Icliights of Maccabees v. Gordon, 83 Ark. 17, Quzgley v. HaMin,on, 104 Ark. 449, 'Os-burn' v. Lawrence, 123 Ark. 477. ' Appellee, J. F.. Turner, alSo Contends that he Made a prima facie shOwing of a 'breaCh of the'contraCt :637 - the : Owner of the horse in failing to replace him With another on account of not being a fifty per cent. foal-getter. The contract.provides for the return of the horse by the puir-chasers in case he did not prove serViceable.. Conveying thiS fact to the:owner by letter Was not a sufficient priMa facie showing of a'breach of the contract. In the present state of this piece of evidence; we refrain. froth determining whether there was a,breach:of the contract in this particular. • , The judgment is affirmed as to J. F. : Turner, .ancl reVersed as to J. P. Caruthers et al.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.