DocketNumber: No. 4-6795
Citation Numbers: 162 S.W.2d 891, 204 Ark. 541
Judges: HUMPHREYS, J.
Filed Date: 6/15/1942
Status: Precedential
Modified Date: 1/12/2023
This is an appeal from a decree dismissing appellant's motion to set aside a decree rendered on the 31st day of December, 1940, by the chancery court of Boone county. The decree sought to be set aside was one canceling all the proceedings in a foreclosure suit between appellant and appellees during the September term, 1940, of the chancery court. The cancellation of the foreclosure proceedings included everything had and done therein at said September, 1940, term of court and amongst other things the cancellation of the deed of the commissioner of the said court conveying the lands described in the mortgage to appellant who was the purchaser of the lands at the mortgage sale, which sale and deed were confirmed by the court. These proceedings were canceled on March 1, 1941, which was the last day of the September, 1940, term, without notice to appellant and appellees were permitted to redeem the lands by paying into court the debt, interest and costs.
Appellant was notified of the action of the court by registered letter whereupon it filed a motion to set aside the court's decree canceling the foreclosure proceedings on the ground the court was without authority to set aside the foreclosure proceedings without notice or a hearing.
Later the appellant filed a motion to set aside the decree canceling the foreclosure proceedings because after acquiring its foreclosure deed it entered into a binding written contract to sell the lands to an innocent third party.
Answers were filed to both motions and the first motion was tried by the court resulting in a decree to the effect that it had control of the foreclosure proceedings during the term of the court at which all orders were made therein and had power and authority to cancel the proceedings and permit appellees to redeem the lands. *Page 543
From this holding and decree an appeal was prosecuted to this court and was tried and an opinion rendered therein by this court on January 19, 1942, under the style of The Security Bank of Branson, Missouri, v. Speer,
During the pendency of this appeal appellees filed a motion in this court to abate the appeal until the motion and answer thereto tendering the issue as to whether appellant had entered into a written contract of the sale of the lands to an innocent third party was tried in the chancery court. In order to prevent a continuance or abatement of the trial of the case on appeal appellant represented to the court that it had taken a nonsuit on its motion tendering the issue that it had sold the lands to an innocent third party after acquiring and recording its foreclosure deed.
This court overruled the motion to abate the appeal on the ground that appellant had taken a nonsuit of the issue tendered in its motion as to the sale of the lands to an innocent third party.
In due course this court rendered an opinion affirming the action of the chancellor in annulling and canceling all the foreclosure proceedings and permitting appellees to redeem said lands. The opinion appears in the
After this opinion was handed down appellant filed the motion involved on this appeal to set aside the order and decree rendered by the chancery court on December 31, 1940, which, in substance, is the same motion that appellant took a nonsuit upon in the chancery court during the pendency of the appeal above referred to in
No error appearing, the decree is affirmed.