544 HENDRICKS V. HENSON. [192 • • HENDRICKS V. HENSON. 4-4260 Opinion delivered April 6, 1936. 1. JUDGMENT.—Consent cannot give jurisdiction of the subject-matter; and where that jurisdiction is. lacking, the judgment rendered is void. 2. JUDGMENT.—Although mortgagor invoked the jurisdiction of the probate court by filing a petition to have mortgagee's administrator satisfy the mortgage of record on ground that debt had been paid, the judgment rendered was void for lack of jurisdiction, and not res judicata in action to foreclose mortgage. Appeal from Sebastian Chancery Court, Ft. Smith District; C. M. Wofford, Chancellor ; affirmed. James Seaborn Holt, for appellant. Robert D. Seott, for appellee. BUTLER, J. In Angust, 1929, J. L. Henson, now deceased, executed his promissory note in favor of L. TT
Atik.] HENDnicKs v. HENSON. 545 Saiewitz the •stim. of . $1,500 with interest at.8 per cent.; due one year afterdate. To secure this note Henson and his wifeexecated a mortgage on certain real property.in the city. of Fort Smith: In :llecember,.4931,- Saiewitz died and A. L. Hen-dricks was .appointed administrator of his estate. At the time . of the death Of : Saiewitz the mortgage and note were in the possession of Henson, but the mortgage had . not. been 'satisfied of. record. On .the first .day of Feb-ruary,' 1933,.Henson filed a. petition in the Probate court of. the .Fort . Smith District of Sebastian County •reciting the ekecution of the note . andmortgage, alleging that the indebtedness .had.been . paid and praying that the .court order the•administrator to satisfy the mortgage of record and file a proper.release deed.. • Hendricks, as adMinistrator, filed . a• response, denying . that payment had been 'made and praying. that the petition of Henson be• dismissed. A hearing was had on the issues joined, and the court . found. 'in 'favor •of the respondent, and dismissed the petition of Henson. . • • • On Jfily 1935,. the appellant,'•as adininistrator, filed suit in *the Sebastian . C1Mncery• Court for juidgment On the mote execnted• by Henson to his intestate, and for foreclosure - of the moitgage. • In the meantime, • J. L. Henson died; and snit was brought 'against W. HenSon, adininistratOi of hi's estate, who defended on the ground that: the note had been : paid. To the defense offered, ap, pellant•:interposed . a: plea .• of rest jUdicata based on • the proceedings and judgment in the probate cOurt .aforesaid. •The plea • of '.res . judicata was overruled by the court, and the;appelleeswere-perniitted -to introduceles: timony Which tended • to *eStabliSh , the 'defense of pay, ment, and that the note and mortgage had been delivered by Saiewitz in his lifetime td Henson:. :The appellant rested on his plea of res judicata, and the eourt found in faVor of appellee and dismisSed• appellant's•eomplaint... The ..sole 'question presented by this appeal Telates• to the - correctness of- . the court's rfding 'on* the .plea • of. ye& judicata. The appellee &intends that the proceedings . and judgment of the probate court were void for the• reason that:such . cOurt had no jurisdiction 'of the' subject,
546 HENDRICKS V. HENSON. [192 matter. Appellant concedes the lack of jurisdiction of the probate court, but contends that appellee is estopped from now setting up the issue of payment, because his intestate invoked the jurisdiction . of the probate court and acquiesced in all of the proceedings had therein. In support of this contention he cites the case of Faricher v. Kenner, 110 Ark. 117, 161 S.' W. 166, referred to in the case of Huff v. Hot Springs Savin,gs Trust & Guaranty Co., 185 Ark. 20, 45 S. W. (2d) 508. When the Fancher case is examined it* will be seen that the only question involved on appeal was the judgment of the trial court apportioning the costs equally between the litigants which was approved by this court on the theory that the costs had been unnecessarily incurred by the party complaining in that he had acquiesced in an erroneous procedure in the probate court and in the circuit court on appeal. This court, however, noticed that the probate court, in the inception of the proceedings before it, had jurisdiction of the subject-matter, but that the method of procedure was erroneous. With reference to this, we said: "While this was an erroneous method of procedure in making the inquiry after it was disclosed that appellee was claiming the property in his own right, still the .probate court, and the circuit court on appeal, had jurisdiction of the ,subject-matter of the inquiry, and an erroneous exercise of that jurisdiction did not- defeat it.,* The appellant, had it in his power to prevent the erroneous method of procedure in the circuit court, had he made timely objection thereto, and much of the costs incident to the trial of the rights of property incurred by appellant, he could have prevented, and they were unnecessary, had he objected to the procedure." It is unnecessary for us to consider the correctness of the ruling of the court in that case or the implications arising from it which might be thought would sustain the contention of the appellant in the instant case, for the reason that in this case, at no time did the probate court have jurisdiction of the subject-matter. It is well settled that where this jurisdiction is lacking consent cannot give it, and the judgment in all events is void. Grimmett v. Askew, 48 Ark. 151, 2 S. W. 707; Axley v.
ARK.] 547 Haiimmock, 185 Ark. 939, 50 S. W. (2d) 608. The trial court, therefore, correctly overruled the appellant's plea of former adjudication, and, as the evidence abundantly sustains the defense interposed, the decree will be affirmed. It is so ordered.
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