Wells Fargo & Co. v. W. B. Baker Lumber Co. , 1913 Ark. LEXIS 149 ( 1913 )

Kirby, J.,

(after stating the facts). It is undisputed that the application to set aside the default judgment was made at the same term of court at which the judgment was rendered and shortly after its rendition.

‘ ‘ During the whole of the term, at which a judgment or order is rendered, it remains subject to the plenary control of the court, and may be vacated, set aside, modified or annulled * * *. This is a power inherent in all courts of general jurisdiction and is not dependent upon nor derived from the statutes.” 23 Cvc. 901.

In Ashley v. Hyde, 6 Ark. 100, this court said:

“During the term at which judgment is rendered, the power of every court of record to set aside, vacate and annul its judgments and orders, is undoubted. This is a power of daily exercise by tbe courts, in the granting of new trials, arrests of judgment and in other proceedings of like character. Its exercise and propriety can not be questioned; it is based upon the substantial principles of right and wrong, and for the furtherance of justice. ’ ’

In Underwood v. Sledge, 27 Ark. 296, this court said:

‘ ‘ It is well settled in this State, that a court has control over its orders and judgments during the term at which they are made, and, for sufficient cause, may modify or set them aside.”

In Aspen Mining Co. v. Billings et al., 150 U. S. 31, Mr. Chief Justice Fuller, delivering the opinion of the Supreme Court of the United States, said:

“The general power of the circuit court over its own judgments, decrees and orders, during the existence of the term at which they are made, is undeniable, and an order allowing an appeal is subject to that power, so long as the appeal remains unperfected and the cause has not passed into the jurisdiction of the appellate tribunal. ’ ’

It is also true, this court held in Ry. Ex parte, 40 Ark. 141, in a cáse of a default judgment, that the truth of the sheriff’s return upon a copy of the writ could not be controverted either in the action or in a review upon certiorari.

But it has further held, however, that an officer’s false return of service of process shall not preclude the defendant from showing the truth in a proper proceeding to be relieved from the burden of a judgment based thereon.

“Evidence tending to contradict the record is heard in such cases, not for the purpose of nullifying the officer’s return but to show that by the judgment the defendant has been deprived of the opportunity to assert his legal rights without fault of his and that it would be unfair to allow the judgment to stand without affording him the chance to do so. The principle that affords relief to one that has been summoned, but has been prevented through unavoidable casualty from attending the trial governs.” State v. Hill, 50 Ark. 461; See also Kolb v. Raisor, 47 N. E. 177; Locke v. Locke, 30 Atl. Rep. 422; Cook v. Haungs, 113 Ill. App. 501; Clough v. Moore, 63 N. H. 111; Carr v. Bank, 16 Wis. 52.

' Appellant was not entitled to show the falsity of the officer’s return to defeat the jurisdiction of the court rendering the judgment under the doctrine of the cases above cited, but only to excuse its failure to make its defense at the time of the trial and prevent its being compelled to submit to a judgment and have its rights unjustly concluded without an opportunity to be heard.

The testimony is well-nigh conclusive that the summons was not served upon an agent of the express company, as the return shows it to have been, both persons who had been agents denying that it was served upon them and the sheriff not being able to say upon whom it was served; but only that he delivered the copy to a man who said he was agent, whom he could not identify as either man who had been agent there, and the testimony shows further that the company had no notice in fact of the bringing of this suit, nor the service of summons, and that as soon as it had information that a default judgment had been taken against it, immediately and without delay, shortly thereafter, and at the same term of the court, it moved to set aside the judgment and that it have opportunity to make its defense to the suit, which was alleged, to be a good one.

It was within the discretion of the court to permit the setting aside of the default judgment and the motion should have been granted and the defendant given an opportunity to make its defense. Rice v. Simmons, 89 Ark. 360.

It is true, the second and supplemental motion to set aside the judgment, accompanied by the affidavit of the person who had been the express company’s agent on the date of the service of the summons, was not filed until the afternoon of the day upon which the first was overruled and from which an appeal had been prayed and granted, appellant not sooner being able to procure tbe affidavit of said person, but it was at tbe same term of court at wbicb judgment was rendered, and since no appeal bad, in fact, been perfected from tbe judgment overruling tbe first motion, tbe court bad as mucb jurisdiction of the cause and to grant the relief prayed as though tbe first motion bad not been overruled and appeal prayed therefrom. Aspen Mining Co. v. Billings, supra; Clay v. Noterebe’s Executors, 11 Ark. 631; Robinson v. Arkansas Trust Co., 72 Ark. 475; Claiborne v. Leonard, 88 Ark. 391.

For the error of tbe court in refusing to grant tbe motion and set aside tbe default judgment, its judgment is reversed and the cause. remanded for a new trial that appellant may have opportunity to make its defense against a claim which it was prevented from defending in tbe first instance through no fault of itp own.