Gates v. Hayes , 69 Ark. 518 ( 1901 )

Wood, J.,

(after stating the facts). Our statute allows parties against whom judgment is rendered on constructive service two years in which to come into the same court and move to have the action retried. Sand. & H. Dig., § 5882. It is clear, under this statute, that appellee (petitioner) had an adequate remedy to correct ihe errors of which he here complains by moving the court to retry the cause, and, on refusal, to appeal. He gives no valid excuse for not pursuing this course.

Moreover, the aid of the writ should never be granted except to do substantial justice. Burgett v. Apperson, 52 Ark. 213. Although not strictly applicable to proceedings by certiorari, section 4200, Sand. H. Dig., shows the policy of the law to be not to vacate judgments unless there is some defense to the action in which the judgment was rendered. This is the principle applicable here, independent of the statute. Counsel assert in their brief that the “defendant insists that he does not owe F. Gates one cent.” If that be true, he should have set it up in, his petition. Unfortunately for him, his petition alleges that the suit was on a note and open account, and he does not charge anywhere that the note was not given, or that it was not due, or that it had been paid. Nor does he say that the account was unjust, or that it had been paid; nothing, in fact, to show that his lands should not have been subjected to the payment of his debt.

We think, upon the showing made in the petition, the circuit court should have quashed the writ, and dismissed the petition, in so far as it affected a sale of the lands to pay petitioner’s debt. Reversed and remanded, with directions to enter judgment accordingly.