ARK.] BANK , OF RU . SSEjJLVI. LLE V.. WALTEIALIj . . 1114 - BANK OF RTI SSW -41, 11.LE: V :WALTHALL. 4-4358 Opithow del iyered October 5, :1936. JUDGMENTS—V AGATING.--With the'lapse of the term of court at which a judginent was-rendered; the cou'rt kses control over; the same, and thereafter can vacate or ModifY; it . orily in the manner and upon such terms as are prescribed by the statute. !Crawforg & Moses' Dig., §§ 6290, 6292. PLEADING — VACATION OF JUDGMENT—In a proCeeding to vacate or 'set aside . a 'j udgment, it is necessary' bbtli tO Wead . ,and' proVe the allegations relied tipoii, as:Well 'as a prijna4acie showing: a
1112 BANK OF RUSSELLVILLE v... WALTRALL.. [192 a valid defense to the original action; and an allegation that the taking of said judgment was a fraud practiced by the plaintiff in obtaining the judgment is insufficient,.since it is a mere conclusion of the pleader, and does not meet the requirements of the rule that acts constituting fraud must be specifically alleged. Appeal from Pope Circuit Court ; Robert A. Rags- d • ale, Special Judge; reversed. C. C. Wait, for appellant. Bob Bailey, for appellee. . BUTLER . , J. The proceedings from whence this appeal comes originated in the Pope circuit court by the filing, on the 11th day of December, 1935, the following pleadings : . • "Comes the defendant, F. F. Walthall, and moves ihe court to set aside judgment rendered . in the circuit court of • Pope county, Arkansas, on the . 4th day . of April, 1935, and states That suit Was filed in thiS caSe JulY 10,'1934; and judgment Was rendered in the justice of peace court by 'default upon the part of the defendant on . August 6, 1934. That notice 'was given of appeal at the same time affidavit filed . on August 23, 1934, for appeal to the . circuit court of Pope county, Arkansas. "-That 'Robert Bailey Was the attorney for the defendant in said litigation and without any reason, or notice . whatever, although the attorney was • present..in court at all times, judgment was rendered against the defendants dismissing the appeal at the April term,.1935, of the circuit court of Pope county, Arkansas. "That the taking of said judgment or dismissing of said appeal by plaintiff was a fraud practiced by the plaintiff in obtaining the judgment : and the defendant has a meritorious defense to said cause of action. "Wherefore, premises seen, defendant prays that said judgment be set aside and held for naught." The Bank of Russellville filed its, general demurrer to the motion and also answered as provided in § 1193 of the ,C. & M. Dig. The demurrer was overruled and, after having heard the evidence adduced, the court made an order setting aside the judgment dismissing the appeal of the appellee, Walthall. From the evidence it appears that a judgment was rendered July 10,1934, against
ARK. BANK OF RUSSELLVILLE V. WALTHAM.. 1113 Walthall in favor of the appellant bank in an action for the recovery of the balance due on a promissory note owned by the- bank. This judgment was rendered by default and in apt time an appeal was prosecuted to the circuit court of Pope connty which was docketed at the November . term, 1934. The case was passed until the April term, 1935. It appears that the regular judge •set the docket for the April term. In doing so he announced his disqualifications in this case and in five others which were marked::by him as "Special" and set down for trial for . the fifth day of April, 1935. On that day, Honorable Sam Rorex:was elected special judge to try these cases. Not having disposed of all these cases on the fifth of April, he Continued the instant case until the following day—Saturday, April 6. On that day he : rendered a judgment dismissing Walthall's appeal. Later, after the term of the court had expired, an execution was issued out of the court of justice Of the peace whereupon. the motion to set aside the judgment of dismissal was filed. A court, after lapse of the term, loses control over its final judgment and, in the absence of a statute conferring such power, cannot at a subsequent term alter or vacate the same Johnson v. Campbell, 52 Ark. 316, 12 S. W. 578. Only in the provisions of §§ 571 and 573 of the Civil Code, now §§ 6290 and 6292 of Crawford & Moses' Digest, is that authority to : be found which can be exercised only in such manner a,nd upon such terms as are prescribed therein. Ayers v. Anderson Tully Co., 89 Ark. 160, 116 S. W. 199. It is therefore necessary both to plead and prove the allegations relied upon .for a- vacation of the judgment, as well' as a prima* facie showing of a valid defense to the original action. The allegation upon which the judgment in the instant case is sought to be set aside is that "the taking of said judgment or dismissal of said appeal * * * was a fraud practiced by the plaintiff in obtaining the judgment." This allegation was a mere conclusion of the pleader and insufficient to meet the rule that acts constituting fraud must be specifically alleged. Twombly v. Kimbrough,
.1114 . BANK • OF • RUSSELLVILLE V. WALTHAM,. [1.92 .24 Ark.. 459 ; . •Dashbrook v. Tri-Couuty Highway Imp. Dist.,152 Ark.: 461, 238 S. W. 601. • Not only was the allegation .insufficient, but also . the. proof • adduced to • establiSh the-fraud. At most it was' to the effect that -the judgment was rendered in the absence of defendant's attoiney and-on a day when it )Yas' not customary to , hold :court; -and that-when A case was called it .was the 'Usual 'procedure -tO :call the absent attorney and notify him that:the base •was 'on. call ;. that. the office of the defendant's was Only a- block from the eourt house -and he could - have been : easily reached .and notified. The -evidence -fails tci'show any. affirmative conduct on the part of the bank or its . .attorney on the occasion of the •disMissal of Walthall's apPeal tending •to show any imposition or fraud practieed upon the court, in procuring •the :order. This 'was necessarY :to . establish fraud suf--ficient 'to 'warrant the setting aside of the judgment after .the• lapse of . the teftn. Boynron-v. Ashabranner, 75 Ark. 415, '88 566,11011; 91 S. W. 20; H. G. Pugh & Co. v. Martin, 164 Ark. 423, 262 S. W. 308. • 11avi o. n reached the conclusion that fraud was not: poperly . alleged Or suffiCiently proved, it . .becomes unnecessarY to' notice the Other , questions raised by the _litigants in their resPective briefs. It is suggested by connsel for appellee that _the evidence shows that :Rorex ,was' not _elected special judge on the 5th day Of April, hut on the 6th, and that therefore his order issued on the •5th , continning 'the case' to flie next :day was at a time When ,he had no anthority to act. It is true the clerk .appearsto have been . confused and gave some .testimony which might Support the . contention of Walthall. This, hoWeVer, is clearlY disproved by the certified copy of the record showing the election of Borax as special judge on April 5, 1935. It follows that the trial court erred in. vacating the jndgment of . dismissal. Its judgment is, therefore, reversed, ; and the motion to vacate is dismissed.
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.