ARK.] AMERICAN CO. OF ARKANSAS V. WILSON. 625 AMERICAN COMPANY OF ARKANSAS V. WILSON. 4-3046
Opinion delivered June 19, 1933 JUDGMENT—VACATED AFTER TERM WHEN.—Default judgments were properly vacated after term for "unavoidable casualty or mis-, , fortune," within Crawford & Moses' Dig., § 6290, par. 7, where defendant's attorney was induced not to file motion to vacate the judgments during the term by an understanding with plaintiff's counsel that the judgments . would be vacated. . Appeal from Pulaski Circuit Court, Third Division ; Marvin Harris, Judge ; affirmed. . Roberts Stubblefield, for appellant. am Rorex and Owens <6 . Ehrman, for appellee. SMITH, J. This appeal questions the action of the Pulaski Circuit Court in setting aside default judgments which . appellant recovered against appellees, the , order appealed from having been made after the expiration of the term at which the judgments were rendered. Appellant filed . suit on August 12, 1932, to collect an account alleged to be due it by appellees as partners under the firm name of . Wilson & Currie. Summonses were served on each defendant, but no answer was filed, and on September 7, 1932, judgment was rendered against Wilson, and on September 12, 1932, judgment was also rendered against Currie. More than twenty days had expired after service of summons upon the respective defendants. The testimony shows that Wilson had stated io Currie, his partner, that he would attend to the case, and the latter relied on the former to do so, and gave the-matter no personal attention. The testimony is conflicting as to wheTher Wilson had employed and directed an attorney
626 A-MERICAN. C6. OF ARKANSAS V. WILSON. - [187 to-file an answer in the cae, but t it appears certain 'that Wilson was undek the apprehension that he'had . done so and that he was relying onthe attorney to file,the.angWer. The attorney in question testified that he did not understand that he had been employed and directed to file the answer, but on September 14; 1932, which was prior to the adjournment of the term of court at which the judgments had • been rendered,- the • attorneY *conferred with the judge who had rendered the judgments, and the following. statement of the . judge as to this conversation appears in the' re : Coid:- '‘CoUtt:' ' . 1 .. teeall it, he (the attorney) came.over here, a short time after-the, default judgment was rendered, all Out of breath—he was- excited about it,' and-T told hini he had better file his motion (to vacate the . judgMent) in the 'regular way and take it up." On the following day, which was still prior ,to the adjournment of the , court . for the term, Wilson and his attorney conferred 'with the , atteiney for the plaintiff in regard to the judgmentS,..'and there ' is an Unfortunate but irreconcilable "cOnfliet in the testimony ' ,ag . to the agreement then readied. - ..The r e Was . clearly a MiSunder-Standineas to . the" g kreernent . then Made. -Aceording to the lestiMony 'of both WiNori 'and hi*s attorney, the ret1.1 reSeUtatiOn WaS then Made ' that WilSon did not ;OW6 any Part Of the ademint,'Whiehinvolved . shiPinents of calcium arsenate iii'CailoadlotS'eX'fendineo vet*a Period of year's exdept the .ShiPment made in-the - year 1929. That the transactions had . been handled:by h Mi.-Anderson; repre-.sentinethc plaintiff, and that Andersdn 'would 'so testifY.:' . : AndeisOn had left the State; . . , and' his' whereabOuts were-then unknown, and • 'a'f ew weeks ' time , waS asked' and given for -N'Nr ilson tO , 'get in tonal:with Anderson, who could and Would explain fhe transadtiOn and -tdake it appear that Wilson & Currie owed fOr only one shipMent, which had been closed by a note . to the plaintiff's order, whiCh the defendant s' , offer,ed to pay. . No motion was filed , to vacate the judgments during the,term at which they were rendered, because Wilson and hiS attorney relied upon this .agreement,,believing
'ARK.] .• AMERICAN 'Co. OF A RKANSAS. V. -WILSON. 627 .; that time .had been given to, make. a, . tiff ,that an error -,had.been made. . . • Plaintiff's Attorney. admitted. that , he had a.conversation with Wilson . ,and..Wilson's, , attorney: before the . :ex . piration of stho.term, buttestified that the extent , of his ..agreernent was , that he would,postpane :the. issuance , of an . execution : for.. a ; few., weeks ;for Wilson: make; ,the suggested investigation and .to, .make, report thereof:to the ., plaintiff, bnt;., that, ; he : : did .not agree i . that., the; jUdg-: mentsthemselves .: might be .vapated.-. ...... f t! ; • 7 , • Testimony, was . offered, n in, -support.. of the motion . ; to . v , -,acate the -judgments, to ; the . effect, that Wilson .4,...Currie 'did nOt owe.the account or any. portion . .of, it,:exeept :the shipment the. yeat 1929, and . . that :the: account had . been closed by the , execution of„a, note. for the: shipment . made : that year, yhich , Wilson .offered -to, pay, j-le . re-Jiewed. this tender of payment...With his ,motion. The , judgments were vacated .by.the presiding . judge who,. rendered, them,. And , his , statements, „appearing ,,in :the record,. indicate that.this action. was induced, in:part, .at, least;,.by, the. ju . dge!s , own. , recollection; of ;the facts. The , , ceurt made, a.mOng: others, the following fip.dings .of tact : That thi S:understanding:caused the .plaintiffs and.thoir atiorhey to thinkthat they. were to, have-fWo or three.. weeks atter, September ; : HAIL in. • which,,to !file..some 1:ind.,e:f a, :pr,oceeding „to. ; have i the iudginents,,set..,aside, finie ran over . .the e , cpiration. of :the term and, the court is„theret ore, treating ,this ;proceeding: to.,sot,asid,e,the said judgments as if if were• filed during the same lerrp . •the judgments were..rendered.''•..„! • ,.:,■ The court found, an,d .. theitestimony lestablishes:VerY clearly, that no fraud was intended or .was practiced-by the plaintiff's attorney -, but the testimony also establishes the fact, as found / by the .eouyt,. ;that, at, a :time. :when a motion could and would hayeLbeen entertained to vacate the judgments, an agreement was reached, as mider-stood by Wilson and hiS t 'attOrney, that the judgments. would be vacated for: tho, purpoSe of . filing an answer putting in issue the ; Jiability . of the defendants for the debt 'sited for,. nd ;that heCanse ' , of this _Agreement, as
understood bY Wilson and his attorney, a motion to vacate was not filed until after the • expiration • f the term at which the judgments had been rendered. • The case is sufficiently like that of Wrenn v. Manufacturers' Furniture Co., 172 Ark. 599, 289 S. W. 769, to be governed by it. That case, like this, was one in which a motion was , rhade to vacate a:judgment after the expiration of the term at-which it had been rendered. It was there• said: • "In a recent case, where a defendant relied on conversations 'and statements of attorney for 'plaintiff; tbis Court said: 'There was' such a misunder-- standing as constituted unavoidable casualty or thisfOr-tune which prevented tbe defendant from appearing and defending. There is no moth to suspect—and the' lower court did not find—that plaintiff's attorney had intentionally misled the . defendant, but the defendant and her husband, who was her representative - in . the matter, did testify that they were-misled, and, because of thal fact, had not arranged with the attorney they intended to -employ to file an answer presenting a defense which, if -true, would defeat a recovery, and had not furnished the 'attorney the infOrmaton needed to prepare the answer.' McElroy v. Underwood, 170 Ark. 794, 281 S. W. 868." ' We think tlie showing made was sufficient to justify -the- court, under . the seventh paragraph of § 6290, Craw-•fOrd & Moses' Digest, to find . that an unavoidable casualty -or misfortune had prevented the defendants from appeAr-, ing and defending when theY -might and wordd otherwise have done so. The judgment of tbe cOurt vacating the original judgments is' therefore affirmed. •
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.