McLeod v. Tisdale ( 1893 )

Cockrill, C. J.

When a party has a good defense to an action, and is prevented from making it because he has not notice of the pendency of the suit, it is the province of equity to open the judgment in order to allow the defendant the benefit.of his defense, if he is not barred by laches in asking relief. State v. Hill, 50 Ark. 458; Guess v. Amis, 54 id. 1; Thompson v. Ogle, 55 id. 103.

The doctrine applies to a judgment of the probate court rendered against an administrator for the recovery of the balance found due by the court on settling his account, without previous citation or notice to him. As such a judg-ment is binding on the sureties in the administrator’s bond, they are entitled to the relief to the same extent as their principal.

We make the following deductions from the pleadings in this case : The probate court settled the administrator’s accounts, and rendered judgment against him for the amount found due. If that is not the meaning' of the complaint, it failed to state a cause of action. The answer alleged that neither the administrator nor sureties had notice of the proposed action in reference to the settlement of the accounts ; that the administrator had paid taxes and discharged probated claims which were a charge against the estate, and for which he should have had allowance on final settlement, and that he was prevented by the want of notice from having the allowances made. That is the fair inference from the allegations of the cross-complaint. It stated therefore an equitable defense to the plaintiffs’ complaint, according to the principle above set forth, and the prayer to transfer to equity should have been granted.

There was no specific prayer to set aside the probate court judgment, but the defendants asked to be allowed to settle the accounts in the probate court — the tribunal having primary jurisdiction of that matter. Whether the probate court, under our peculiar administration, has exclusive jurisdiction to state the account and fix the liability of an administrator in such a case has not been argmed by counsel and need not be decided now. See Brice v. Taylor, 51 Ark. 75.

If the facts justified any relief, the defendants’ misconception of their remedy did not cut them off from that to which they were entitled under the pleadings. The court ought to have transferred the cause, and if, upon a hearing, the defendants made out the case stated by them, the court should have set aside the judgment of the probate court to enable the defendants to interpose their defense in that tribunal.

Reverse and remand with directions to proceed in accordance with this decision.