Church v. Gallic

88 S.W. 307, 75 Ark. 507, 1905 Ark. LEXIS 629

• Court: Supreme Court of Arkansas
• Decided: May 27, 1905
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) The complaint was defective. It did not state a cause of action.

The general allegation that appellant lost her right of appeal by the loss of a bill of exceptions, an accident unavoidable on her part, states no ground for equitable interposition, under Kansas & Arkansas Valley Ry. Co. v. Fitzhugh, 61 Ark. 341. This defect in statement, however, might have been reached by motion to make more specific.

But the complaint, even if treated as sufficient on demurrer in this particular, did not state any ground for relief on the merits. The fact that appellant was a married woman at the time a suit a law was filed against her, and that her husband was not made a party to such suit at law, presents no reason whatever why a judgment should not have been rendered against her at law, and no reason for the intervention of chancery to prevent the enforcement of such judgment.

It does not appear that the demurrer was insisted upon in the lower court. The cause’was heard by the chancellor upon depositions concerning the failure to obtain bill of exceptions.

The testimony of the circuit judge before whom the case at law was tried shows conclusively that appellant was entitled to no relief under the rule announced by this court in Kansas & Arkansas Valley Ry. Co. v. Fitzhugh, supra, “that when a party who is himself free from fault, and against whom an unjust and inequitable judgment has been rendered, has lost his right of appeal by unavoidable accident, a court of equity in this State has the power to grant relief.”

No unavoidable accident and no unjust and inquitable judgment were shown.

The decree of the chancellor dismissing appellant’s bill is therefore affirmed.