Ryan v. Fielder

138 S.W. 973, 99 Ark. 374, 1911 Ark. LEXIS 279

• Court: Supreme Court of Arkansas
• Decided: June 5, 1911
• Status: Published

Opinion

Kirby, J.,

(after stating the facts). A motion in arrest of judgment .is not recognized in civil suits under our Code of Practice, and such motion, where recognized, can only be maintained for errors apparent upon the face of the-record, and the evidence is no part of the record for this purpose. Carter v. Bennett, 15 Howard, 354; Bond v. Dustin, 112 U. S. 608; 2 End Pleading & Prac. 794.

Under our statute, the defense of an infant must be by his regular guardian or by guardian appointed to defend for him, where no regular guardian appeai-s, and “no judgment can he rendered against an infant until after a defense by guardian.” Section 6023, Kirby’s Digest. But, if a judgment is rendered against such infant without such defense, it is only voidable, under our decisions, and it may be vacated or modified after the expiration of the term of court at which it was rendered “where the condition of such defendant does not appear in the record, nor the error in the proceedings.” Sec. 4431, Kirby’s Digest, sub-div. 5.

The proceedings to vacate the judgment for this cause must be by complaint, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, and it will not be vacated until it is adjudged that there is a valid defense to the action in which the judgment was rendered, the court first deciding upon the grounds to vacate before trying the validity of the defense. Kirby’s Digest, § § 4433-5-

The court has control of its record and judgments during the term, and can set aside a verdict rendered and grant a new trial for the causes and -in the time and manner prescribed in the statutes; and since no judgment had been rendered upon the special verdict returned by the jury before the filing of the so-called motion in arrest 'bf judgment, from which and the evidence thereon it first appeared that the defendant was an infant, it could have set same aside and granted a new trial, treating said motion as one for that purpose. Clements v. Hamilton-Brown Shoe Co. ante p. 335; Merritt v. School District, 54 Ark. 468; Miller v. Mintun, 73 Ark. 183; Randolph v. Nichol, 74 Ark. 93; Salinas v. Wright, 11 Tex. 572.

It should have made an order .setting aside the -verdict ’and granting a new trial, which in effect it did do by sustaining said motion and refusing to enter judgment upon said verdict.

It doubtless would have made an order granting a new trial after its refusal to render judgment upon the verdict if it had been requested to do so, and the effect of the order made was but to leave the cause .pending with no verdict rendered and undecided as though no trial had occurred, and said order was not a final judgment from which an appeal could be taken.

The appeal did not deprive the court of jurisdiction to proceed in said cause, having been prematurely taken, and the same is dismissed, the parties still having the right to proceed in the court below as though no trial had been had or verdict rendered.

Mr. Justice Hart dissenting.