Ward v. Derrick

22 S.W. 93, 57 Ark. 500, 1893 Ark. LEXIS 107

• Court: Supreme Court of Arkansas
• Decided: April 8, 1893
• Status: Published

Opinion

Hughes, J.

This is an appeal from a decree sustaining a demurrer to a complaint in equity. The complaint Sets out that the plaintiffs had applied to the circuit court, on the law side, to set aside certain judgments rendered against them upon a bond executed to discharge attachments levied upon property of J. C. Ward, a part of which had been claimed by L. Ward upon an interplea, who had given an interpleader’s bond for the same; that their application was made at the term of the court when the judgments were rendered ; that the defense they proposed to make against the bond was “ non est factiim,” which they set up in their motion to set aside the judgments. The court without objection heard evidence upon the plea of non est factum, and found against the appellants, and refused to set aside the judgments. There was no appeal from the court’s judgment upon the motion to set aside the judgments upon the bond. The appellants, after the term of the court had passed at which these judgments were rendered, filed their complaint in equity to have them set aside, and prayed that the bond on which ’they were rendered be cancelled, on the ground that its execution was procured by fraud, or that it was executed through the mutual mistake of the officer and themselves. It is not stated in the complaint that this was not known to them when they filed their motion to set aside the judgments, nor does the complaint show that the appellants were prevented, without fault or lack of diligence upon their part, from making this defense before the lapse of the term at which the judgments were rendered.

Section 5033, subd. 4, of Mansfield’s Digest provides that “the defendant may set forth in his answer, as many grounds of defense, counter-claim and set-off, whether legal or equitable, as he shall have.” The circuit court which rendered the judgments upon the bond had the power to set aside these judgments at anytime before the lapse of the term at which they were rendered. They could have been set aside only by the court that rendered them, upon the showing made by the appellants in their complaint. They were obliged to g-o to that court with their application to.set them aside and to set out in their application their whole defense, or be held to have waived such defenses as they failed to set out. If the court committed error in refusing to set aside the judgments upon their application, it was error to be corrected by appeal to this court. They had no right to bring a separate action in chancery, to obtain relief they might have had in the original suit by making full defense, or proposing to do so, in their application to set aside the judgments. Bliss on Code Pleading, sec. 347.

The chancery court could not review the action of the circuit court.

Affirmed.