Livingston v. New England Mortgage Security Co.

91 S.W. 752, 77 Ark. 379, 1906 Ark. LEXIS 8

• Court: Supreme Court of Arkansas
• Decided: January 6, 1906
• Status: Published

Opinion

McCulloch, J.,

(after stating the facts.) The mortgage was executed under seal, and contained an express covenant to pay the debt. Therefore the period of limitation within which foreclosure suit could be commenced was, under the statute then in force, ten years from the accrual of the right of action. New England Mortgage Security Co. v. Reding, 65 Ark. 489; American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263.

The suit was originally commenced within the statutory period. . But, even if it had not been brought within the time required, in order to take advantage of the statute of limitation, it must have been specially pleaded in the foreclosure suit. The decree in that suit; if valid at all, cut off all defenses which might have been pleaded therein. Church v. Gallic, 75 Ark. 507; Ward v. Derrick, 57 Ark. 500.

The order of court dropping the case from the docket, with leave to reinstate, was not a dismissal or discontinuance of the suit. A dismissal or discontinuance, though not a final determination of the controversy, is a final ending of that particular suit. Anderson, Dict. s. v. “Dismiss,” p. 364; “Discontinuance,” p. 360; “Nonsuit,” p. 712; 14 Cyc. p. 391.

The order made by the court in this case expressly negatives any intention to finally terminate the suit, and the effect of the order was merely to suspend it. The court retained jurisdiction over the parties and subject-matter of the action. Randolph v. Nichol, 74 Ark. 93, 84 S. W. 1037; 2 Black on Judg. § 912; Weaver v. Ruhm (Tenn.), 47 S. W. 171; Sharpe’s Ex’or v. Rockwood, 78 Va. 32.

If,, however, the order be treated as' a dismissal or nonsuit, it was without prejudice to the right to bring another suit. The issuance and service of summons was tantamount to commencement of a new suit, and, having been done within one year after the dismissal, the statute bar did not attach. Kirby’s Digest, § 5083.

If it be so treated, the decree was not void because of the failure to make appellant, as subsequent purchaser, a party, so as to cut off his equity of redemption. His only rights in the property, as against the mortgagee, was an equity of redemption. He may still exercise that right, the property not having been sold, but he has not offered to do so. On the contrary, he disputes the subsisting validity of the mortgage, and seeks to cancel it. This he cannot do. The suit having been commenced against the mortgagors within the period of limitation, the statute bar did not attach. Less v. English, 75 Ark. 288; Dickinson v. Duckworth, 74 Ark. 138.

This brings us to the question whether or not the order of reinstatement and the final decree were rendered without notice and void, treating the suit as being either reinstated or commenced anew.

The court expressly found tha. the defendants Richard C. Rudwick and Mary J. Rudwick had been duly summoned, and such finding is recited in the .decree. . The summons rar against both of said defendants, by name, and the sheriff certified in his return that he had duly served the same upon “the within-named Richard C. Rudwick and Mary J. Rind.” No explanation of .this vaiiance is given in the record; and, this being a collateral attack upon the decree, we must presume in favor of the court’s exercise of jurisdiction over the parties where it is not shown by proof aliunde that the writ was not in fact served on both of the defendants. Boyd v. Roane, 49 Ark. 397; Hill v. State, 50 Ark. 458; Porter v. Dooley, 66 Ark. 1; Porter v. Tollman, 68 Ark. 211.

We find no error in the decree, and the same is affirmed.