Fears v. Farmers' & Merchants' Bank , 176 Ark. 658 ( 1928 )

STATEMENT OF FACTS.

Appellees brought this suit in equity against appellants to recover judgment for the balance due on certain promissory notes and to cancel a conveyance by J. H. Cunningham, one of the appellants, to his children, other appellants, to certain lands as having been made in fraud of their rights as creditors. The complaint alleges that said conveyance was made with the intent of defrauding appellees in the collection of their debts, and that the consideration recited in it is the sum of one dollar and the love and affection he has for the grantees, who are his heirs at law.

Some of the appellants are adults, and some of them are minors. The appellants who signed the notes sued on denied that the conveyance was made with the intent of defrauding appellees in the collection of their debts. They denied that appellants who signed the notes with J. H. Cunningham had no property out of which the notes might be collected. A guardian ad litem was appointed for the infant appellants, and he filed an answer for them, in which all the allegations of the complaint were denied.

The complaint was filed on the 21st of February, 1927, and the answer of the guardian ad litem for the minor defendants, who are appellants, was filed on May 7, 1927; and on the same day the chancery court rendered a decree for the respective amounts due appellees by appellants, as shown by the complaint, and it was further decreed that the deed executed by J. H. Cunningham, conveying the land in question to his children, was fraudulent as to appellees, who were his creditors, and that the same should be set aside.

On the 6th day of October, 1927, an appeal was granted upon a prayer for appeal, which is as follows:

"Come the defendants by their attorney, J. H. Black, and pray the clerk of the Supreme Court of Arkansas for an appeal herein. This the 4th day of October, 1927." (after stating the facts). Counsel for appellants ask for a reversal of the decree upon the authority of Sager v. American Investment Co., 170 Ark. 568, 280 S.W. 654, where it was held that a cause does not stand for trial in equity until ninety days after issues joined, and that a decree prematurely rendered will be set aside on appeal. That case controls here. A decree was entered upon the pleadings upon the same day the answer of the guardian ad litem for the minor defendants was filed.

It is conceded by counsel for appellees that the decree was prematurely rendered, but they insist that the error was harmless, for the reason that the answer tendered no defense. Some of the appellants who were defendants in the chancery court were minors, and it was the duty of the guardian ad litem to deny all the allegations of the complaint and to require strict proof thereof. The guardian ad litem did file an answer denying the allegations of the complaint, but no proof was ever taken in the case, and a decree was entered before the minor defendants had any opportunity to take proof. In this connection it may also be stated that it was taken within ninety days after the adult defendants had filed an answer.

The prayer of appeal has been copied above, and purports to pray an appeal for all the defendants by their attorney. The language of the prayer for appeal does not limit it to any defendant, as was the case in Camden National Bank v. Donaghey, 145 Ark. 529,237 S.W. 457. Appellants all had a common defense, and the prayer for appeal, being in general terms and for the defendants generally, without limiting it to any individual defendant or defendants, the appeal must be deemed as taken for all.

The result of our views is that the decree must be reversed, because it was prematurely rendered, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.