Gardenhire v. Vinson

39 Ark. 270

• Court: Supreme Court of Arkansas
• Decided: November 15, 1882
• Status: Published

Opinion

Smith, J.

Gardenhire recovered a judgment, by default, against Yinson, on a promissory note, for $1,700. After the lapse of the term, Yinson filed his petition in the same court, to .vacate said judgment, upon the ground that he had been prevented from defending the action, by unavoidable casualty and misfortune. With his petition he tendered an answer to the original complaint, disclosing that his defenses were, the statute of limitations, and that the note had been obtained upon a fraudulent settlement of partnership accounts. Gardenhire filed an answer to this petition, traversing the allegation that Yinson was prevented from defending, by unavoidable casualty. The court opened the default, redocketed the original case, and, after a jury trial, and a verdict for Yinson, rendered a judgment against Gardenhire for costs.

Exceptions to the action of the court in vacating the judgment and reinstating the cause, as also to the subsequent proceedings, were duly saved by bill of exceptions.

The misfortune which, it was claimed, precluded Yinson from making his defense was, that, before the seiwice of process upon him, he had severely cut his foot, and, thenceforward, and until after the adjournment of the court, he was either confined to his bed, or able to move around only by the assistance of others, or upon crutches. He resided at a distance .of eight miles from the county seat. Rut his mind was not affected; he was not even under the care of a physician; and he was in the habit, during his affliction, of going to church, five miles away from his home.

The evidence leaves the impression upon us that the action was undefended, not on account of Vinson’s injury, but because he neglected to read the summons which was left with him. For, at the same time that process was .served in this action, the Sheriff came also to levy an execution upon a judgment which Gardenhire had obtained against Vinspn in another action. Vinson supposed that the process related to the former judgment; hence, he took no steps to prepare his defense. This was his own mistake, and not unavoidable casualty.

As was said by the Supreme Court of Iowa, in Miracle v. Lancaster, 46 Iowa, 179, which arose upon a statute substantially the same as ours: “The evidence as to the defendant’s sickness, and his incapacity to look after his business interests, at the time of and before the default, is not of such satisfactory. character as to warrant us in interfering with the judgment for that reason.”

Vinson could have retained counsel. His personal presence in the court house was not necessary. And, if it had been, it would have been easy to obtain a continuance upon an affidavit as to his physical condition.

The court erred in setting aside the judgment in the original action upon the showing made, and the order vacating said judgment, together with all the subsequent proceedings had therein, including the judgment discharging Vinson, are reversed and set aside, and the original judgment, in favor of Gardenhire, against Vinson, is ordered to stand for execution.