ARK..] KOOHTIT4KY .& j OHNSON, INC V , MALVERN 523 GRAvn, COMPANY.. • ; , KOCHTITZKY & JOHNSON ' INC. V. MALVERN d-RAITEL CONTI;Aiy. • 4-4246 • Opinion deliwred March 3 0. , , 1936. , , • ..JUDGMENTS.—, L Where, through misunderstanding between coun gel, 'defendant's attoyney, , through,no fault of ,his own, made Tid defense, _ and default j • udgment waS, rendered, .it may, under §,6,290,C._ & M. Dig., providing' that judginent may, after the expiration of 'the . terin, be vacated oi s6e: aside for . '"unavoidable' CaSnalty," properly be vacated: '! • •• ' ; Appeal f:rona . Hot Spring Circuit . Court; Jabe zs M. Smith, Special Judge ; reversed. . . JO/in L. McClell'on,.. -Mai-tia;'WOOtt6n Martin and GordOn E. l'oung, for apPeMiit. • • , j oe W. McCoy, tor appellee. . SplITH, J. Kochtitzky & Jolmson, Inc . , a corporation, enterecl!into : a contract with the Federal: Government for
594 KOCHTITZ.K & JOHNSON, INC. V. MALVERN [192
GRAVEL COMPANY. the construction of a levee on the Mississippi River. The construction bond, required in such contracts, was executed by the New Amsterdam Casualty Company. The entire contract which was completed in June, 1933, was sublet by appellant to Ward-Hayes Construction Company, a partnership. The Malvern Gravel Company, hereinafter referred to as appellee, filed an unverified complaint in the Hot Spring Circuit Court on which a summons was served September 11, 1933, against the construction company, to recover balance due under the lease of a locomotive in which judgment for $800 was prayed. A judgment fOr want of an answer was rendered against the construction company on December 5, 1933. A writ of garnish-ment was issued August 14, 1933, and was served upon appellant, which filed a verified answer, averring that appellant, garnishee, had not been indebted to the construction company in any sum since June 29, 1933, and was not at the time of the service of the garnishment indebted to the construction company in any amount. A demurrer was filed to this answer on January 15, 1934, which was not passed upon until the ensuing term of the court, which convened July 16, 1934, on which date the demurrer - was presented to and sustained by the court, whereupon, and at the same time, judgment was rendered against appellant for the amount sued for by appellee for want of an answer. The judgment thus rendered was not entered in the proceedings of that term of court, but was entered, without notice to the appellant garnishee, at the next ensuing term of court. Execution issued on this judgment, whereupon appellant filed this suit to vacate that judgment. A motion to dismiss this complaint was heard by a special judge, and from a judgment sustaining that motion is this appeal. Testimony to the following effect was heard upon this motion. E. H. Wootton, an attorney of Hot Springs, represented the insurance company, which was named as a defendant in the original suit brought by appellee against the construction company, but which had not been served with process. The firm of which Wootton
ARK.] KOCHTITZWY. & JOHNSON, INC. V. MALVERN 525 GRAVEL COMPAN1% was a member was employed to represent appellant, and filed an answer for it containing allegations to the following effect : The claim sued• on arose out of a contract with the United States Government, and the Hot Spring Circuit Court was alleged to be without jurisdiction to hear it. Appellant had been notifiedby the insurance company not to settle with its subcontractor, the construction company, for the reason that the subcontractor had incurred numerous bills for which its bond was liable. - The answer further alleged that on June 30, 1933, the First National Bank of Hamilton, Ohio, had brought suit • in the .St. Francis Chancery Court against the construction Company, appellant, and the insurance company, in which it claimed to hold and own an assignment from the con-struOtion company dated November 21, 1932, of all money due and to become due under the contract between the construction company and appellant; and praying that all sums due under said 9ontract be impounded until all lienable claims against the construction company had been determined, and that the balance be paid. plaintiff bank. Appellant's answer alleged that it had deposited the balance due by it to the construction company with the Bank of . Eastern Arkansas, in Forrest City, subject to the orders of the chancery court of St. Francis County, and that it had no interest in this fund and asked only to be protected in its disbursement. This answer further alleged that the insurance company filed an answer in the cause pending in the St. Francis Chancery Court in .Which it claimed to hold 'an assignment from the construction company prior to the assignment to , the bank. _The_ effect of this answer was to allege that in the suit then pending in the St. Francis Chancery Court, and which had been instituted prior to the suit pending in the Hot Spring Circuit Court, appellant had been required to deposit the very money which the garnishment out of the Hot Spring Circuit Court sought to 'impound, and it was alleged . that the jurisdiction to determine all the lien-able claims, for which appellant's surety would be liable, was in the federal court. This was the answer to Which a demurrer was sustained on the first day of the July, -1934, term -of the Hot Spring . Circuit Court.
.526 KOCHTITZKY & JOHNSON INC. v. "MALVERN [192 GRAVEL COMPANY: : :Woo:Atom testified that he • conferred with Judge Means, who represented the plaintiff gravel-company, the appellee here,- and told him that he rePresented all of the defendants. He 'and Judge. Means agreed 'that the answer presented questions or law which would not require a jury, and .it • was fnrther 'agreed that the cause.. would be submitted to the conrtwithout a jury at a time'convenient to•all parties. He.employed'J. L. McClellan, a local attorney, to ft sist him.in the base. He understodd from Judge Means and-his associate counsel"that the matter would be submitted for trial at a.time convenient to• all'partiesi:of which. all would have; notice.. : , . . . McClellan testified that he adVised judge Means of his employment and agreed With . him that the demUrrer might be heard at any tiMe . convenient tO the court, and
to opposing cOunsel; of : which : date,..When . agreed .upOn, be Would notify Mr. WoettOn and The dernUrrer could' he
heard and the issues . settled. He 'further testified that the 'dOeket. WaS sounded and the case called by . the 'presiding judge at the term Precedingthe July, 1934, terin, at'Which time he stated to the court .in the preSenCe ,of judge 'Means,. that . there was a demnrrer t:e be diSposed Of. uPon Which -Wootton, the principal-Counsel, wished to be heard, And he Understood that it was then agreed that' the Court Would hear the demnrrer at Some fnture time co0Cnient
imrties. , He further 'testified. that at that time :he waS a candidate for Congress, and Judge . Means was a
'candidate oppOsing the re-election of the presiding Jiidge, and it was his understandhig 'that no . civil Case's wonld be 'tried at this july, 1984, ;tern', 'which 'was held 'just pre.- ce . d ino. the 'Primary election' in whiCh witness was inter-'eSted. . . . . . . : The presiding judge testified that -on the opening day of the eourt Judge .Means , called , up the demurrer. No other attorneys were present. . He had forgotten . that McClellan waR connected with the case. Judge.Means sug-ge , sted that the judgment be entered , against the garnishee after the demurrer had . been, sustained, and stated that if , Any one came , ill and raised,. an -objection the judgment could be set aside., Only rontine matters. were , attended
ARK.] KOCHTITZKY 46, J. 013NSON,,INC.. V. MALVERN 527 GRAVEL COMPANY. to at that, term pf court .on .account of .the..political campaign. • .;,, •;;:: • Kochtitzky,.•the chief officer' Of• the , appenant corpot ration, gave testimony •supporting the allegations of the answer; ;filed for his corporation ,to whiclr the;:deinurrer had been ;sustained. -According4 o hiS testimony, -the garnishee- ha& in; its hands . no money .belonging to tbe construction company ,at; the. tithe • of , the• service of', the writ : of garnishment. • . Judge Means testified:in ; suppOrt 'of *the 'Motión. to dismiSs-the ;Complaint; filed• to .vacate the judgment: He did 'net; understand, that •Wootton ;represented• any client except' the insuranee . ccimpany, , and he di& not, ask•.a judgment against it.. :He understood that McClellan •was acting as local counsel for Wootton:• He did:not:understand that be had any agreement with any one as to the time when tbe demurrer should be heard, and he had not agreed that the judgment might be vacated, if objection were made to it. - • . We accept the testimony . of Judge Means without reservation. It exonerates him from any breach of agreement regardi'ng the' trial;of the original suit. But even,.so,. it hns. been . made,to appear. very clearly that ; p. gross injustice •has been done appellant,according to the testimOny of Kochtitzky..• Its••attorneys were guilty of no negligence • or' omission of 'alY duty to- the* client:- While the y . may liaVe , been Mistaken:as to the . effect 'of :the agreement with . ..Judge . Means;.i.t . is. certain that they thought no judgment would . be rendered until the deniurier• had cky_u 4 .1 t4 __ i L 'yecn nt, this riet4ing w0 . 1.11t1 nuu ue nau until 'ffiey Were notified and . afforded 'an oppOrtunify :to . be present. McClellan had the definite imPtessien,and,''aS he thought, an understandiiigthat no 'Civil eases in Which he. was interested would be dispOsed of at this 'July, 1931, tel.-M. of •court.' •• ; • • .• . • , A. , case of 'Un avOidable'casUaltY'has been .established• within the' Meaninglof the seVenth' paragraph:of' §',6290 a. Crawford & Moses' DigeSt, and , the judgment.against the , gainishee should , be set aside, and the 'answer,of,the garnishee . heard 'on 'its . Merits., In . the fellowing cases
528 [192 this relief- was granted after the expiration of the term at which the judgment sought to •e vacated had been rendered. In each of the cases cited there had been a misunderstanding between . opposing counsel which resulted in a failure to make a defense which would otherwise have been interposed, as has here occurred. Mc-Elroy v. Underwood, 170 Ark. 794, 281 S. W. 368; Wrenn v. Manufacturers' Furniture Company, 172 Ark. 599, 289 S. W. 769; American Company of Arkansas v. Wilson, 187 A.rk. 625, 61 S. W. (2d) 453. The judgment of the court sustaining the motion to dismiss the complaint• of appellant Will, therefore, be reversed, and the cause remanded with directions to overrule that motion, and to •hear appellant's answer as garnishee upon its merits.
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.