{ "id": 1481904, "name": "Jones v. The National Bank of Commerce of El Dorado", "name_abbreviation": "Jones v. National Bank of Commerce", "decision_date": "1944-07-03", "docket_number": "4-7402", "first_page": "613", "last_page": "622", "citations": [ { "type": "official", "cite": "207 Ark. 613" }, { "type": "parallel", "cite": "182 S.W.2d 377" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "20 L. R. A., N. S., 454", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "112 S. W. 161", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "86 Ark. 591", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521527 ], "opinion_index": 0, "case_paths": [ "/ark/86/0591-01" ] }, { "cite": "72 S. W. 52", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "71 Ark. 209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1507772 ], "opinion_index": 0, "case_paths": [ "/ark/71/0209-01" ] }, { "cite": "15 S. W. 15", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "54 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1320434 ], "opinion_index": 0, "case_paths": [ "/ark/54/0081-01" ] }, { "cite": "103 F. 2d 24", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1064552 ], "opinion_index": 0, "case_paths": [ "/f2d/103/0024-01" ] }, { "cite": "194 S. W. 849", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "128 Ark. 441", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581940 ], "opinion_index": 0, "case_paths": [ "/ark/128/0441-01" ] }, { "cite": "252 S. W. 34", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "159 Ark. 384", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722084 ], "opinion_index": 0, "case_paths": [ "/ark/159/0384-01" ] }, { "cite": "170 S. W. 222", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 493", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536295 ], "opinion_index": 0, "case_paths": [ "/ark/114/0493-01" ] }, { "cite": "177 S. W. 10", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "118 Ark. 449", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1562576 ], "opinion_index": 0, "case_paths": [ "/ark/118/0449-01" ] }, { "cite": "135 S. W. 835", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "98 Ark. 151", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1316120 ], "opinion_index": 0, "case_paths": [ "/ark/98/0151-01" ] }, { "cite": "134 S. W. 931", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "97 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318858 ], "opinion_index": 0, "case_paths": [ "/ark/97/0397-01" ] }, { "cite": "118 S. W. 250", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "90 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513868 ], "opinion_index": 0, "case_paths": [ "/ark/90/0166-01" ] }, { "cite": "105 S. W. 260", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "84 Ark. 277", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524379 ], "opinion_index": 0, "case_paths": [ "/ark/84/0277-01" ] }, { "cite": "60 S. Ct. 773", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6136184 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/310/0001-01" ] }, { "cite": "308 U. S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141359 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/308/0433-01" ] } ], "analysis": { "cardinality": 744, "char_count": 16682, "ocr_confidence": 0.508, "pagerank": { "raw": 4.245373730806038e-07, "percentile": 0.9148633762045586 }, "sha256": "da9677aa52711e77c07600fbb3930f99a0c1072cd9187872e23a1a9d3a06d609", "simhash": "1:d297fa52f1e21fcb", "word_count": 2841 }, "last_updated": "2023-07-14T21:46:39.394631+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jones v. The National Bank of Commerce of El Dorado." ], "opinions": [ { "text": "Robins, J.\nAppellant, D. L. Jones, by this appeal, seeks to reverse a decree of the lower court dismissing for want of equity his complaint against appellees, The National Bank of Commerce of El Dorado, Arkansas, Oliver Grraydon Harris and W. H. Hines.\nIn his complaint appellant prayed for cancellation of foreclosure decrees of the Union chancery court rendered against appellant and others in favor of appellee, The National Bank of Commerce of El Dorado, the cancellation of deed executed by commissioner in pursuance of said decrees by which certain lands mortgaged by appellant to said bank were conveyed to the bank, and the cancellation of deeds executed by the bank to appellees, Harris and Hines, for these lands; and appellant also prayed for the return of certaiii personal property owned by appellant and sold under the foreclosure proceeding, and for judgment against the appellee bank for $5,064.38.\nOn November 4,1933, appellee bank filed suit against appellant and -others in the First Division of the Union chancery court to recover judgment against appellant for debt and to foreclose certain mortgages executed by appellant to the bank.\nOn June 4,1934, the chancery court rendered decree by which it was adjudged that said appellee recover of appellant the. sum of $706.45 with interest at the rate of ten per cent, per annum from date of decree for the balance due on a certain promissory note, which amount was declared a first lien by virtue of a real estate mortgage on one hundred and twenty acres, and by which it was also adjudged that appellee bank recover of appel.lant the further sum of $1,054.37 with interest at the rate of ten per cent, per annum on another promissory note, which amount was declared a lien on said lands and also on certain personal property, by reason of another mortgage given by appellant thereon. The decree ordered foreclosure of the mortgages and sale of the land and personal property. On September 3, 1934, another decree, making the foreclosure effective as to certain other parties, and fixing the sale on November 3, 1934, was rendered.\nThe property was sold by the commissioner on November 3, 1934, the sale was reported to the court by the commissioner on November 5, 1934, and on September 3, 1935, the commissioner\u2019s report of sale and deed conveying the property to appellee bank were presented to the court and approved. In the early part of 1936, appellant surrendered all the property to appellee bank and moved to Louisiana. Appellee bank, on January 14, 1937, sold and. conveyed to appellee Harris forty acres of the one hundred twenty-acre tract obtained by it in the foreclosure proceeding, and appellee \u25a0 Harris thereafter spent a considerable amount in improving the land bought by him. Subsequently appellee bank sold and conveyed the remaining eighty acres to appellee, W. H. Hines.\nOn October 26, 1934, after the foreclosure decrees had been rendered, appellant filed in the United States District Court a petition asking for the benefit of the provisions of \u00a7 75 of the Bankruptcy Law, 11 U.S.C.A., \u00a7 203, commonly known as the Frazier-Lemke Act, and on November 3, 1934, this petition was referred to the Conciliation Commissioner. On June 25, 1935, the Conciliation Commissioner filed his report in the United States District Court, and on July 1, 1935, that court entered an order dismissing appellant\u2019s Farmer-Debtor petition. For some reason not disclosed by the record appellee bank, on July 17,1935, filed in the-federal court a motion asking for dismissal of appellant\u2019s Farmer-Debtor petition which had\u2019already been dismissed, and on November 1, 1935, this motion was granted by the court, and the case was again dismissed.\nOn November 1, 1941, a second \u201cFarmer-Debtor Petition\u201d was filed in the United States District Court for the Western District of Arkansas. In his schedule to this petition appellant set forth that his sole indebtedness was to appellee bank in the sum of $2,435.62, and that his assets included the land which had been taken from him in the foreclosure proceeding, valued at $4,000, an unliquidated claim against appellee bank for rents and proceeds of oil amounting to an aggregate of $7,500 and the foreclosed personal property and ungathered crops of the value of $1,240. In other words, appellant in this petition asking for the benefit of the\u2019Bankruptcy Act alleged that he owed $2,435.62 and owned property of the total value of $12,750. This second \u201cFarmer-Debtor\u201d petition filed by appellant was not a renewal or an attempt to reinstate his former petition. On the contrary,' appellant himself asserted, in a response filed by him to a motion to dismiss his petition,, that the subject-matter of the second petition was not the same as that of the first. The substance of appellee\u2019s motion to dismiss was a pl\u00e9a of former adjudication and an averment that petitioner did not show grounds for relief.\nAppellant\u2019s second petition was referred to the Conciliation Commissioner who, on March 2, 1942, filed with the United States District Court his report in which he recited that appellant alleged in his petition that appellee hank was indebted to appellant in an amount in excess of $7,500, and that appellant owed only the sum of $2,435.62, from all of which the Commissioner concluded as a matter of law, and so reported to the court, that appellant\u2019s petition did not show that he was insolvent within the meaning of \u00a7 75 of the Bankruptcy Act, and therefore his petition did not state facts entitling appellant to relief in the Bankruptcy Court.\nOn March 30, 1942, this report was heard by the district court and an order was entered by it approving the report and dismissing appellant\u2019s petition for relief under the Bankruptcy Law. Appellant prayed, but did not perfect, an appeal from this order.\nIn his complaint in the instant case, which was filed on September 12, 1942, in the Second Division of the Union chancery court, appellant stated that he \u201cbases this action and his right of immediate possession of all of the properties . . . his right of recovery of money judgment against National Bank of Commerce in the sum of $5,064.38, and the relief prayed, on the findings and judgment of the District Court of the United States for the Western District of Arkansas) . . . entered on March 30, 1942.\u201d\nIn other words, the basis of appellant\u2019s claim in the proceeding at bar was the order of the district court dismissing his second petition in bankruptcy. Plainly stated; appellant\u2019s contention in the court below was that, .'because he alleged in his bankruptcy petition that appellees were wrongfully withholding his property and that appellee bank owed him $5,064.38 in excess of his debt to the bank, ipid because the district court dismissed his petition for the reason that it failed to show insolvency of appellant, or his inability to pay his debts as they matured, this amounted to a judicial ascertainment and declaration that the allegations of his petition were true, that appellees, Harris and Hines, were wrongfully in possession of his property, and that appellee hank owed appellant $5,064.38.\nAppellant misconstrued the meaning and effect of the district court\u2019s order. The order simply meant that appellant\u2019s petition, if true, failed to show that he was an insolvent debtor, or was unable to pay his debts as they matured, so as to be entitled to the benefits of the Bankruptcy Act.\nIn support of his contention appellant argues that appellee bank\u2019s motions to dismiss appellant\u2019s Farmer-Debtor petitions amounted to admissions by appellee bank of the truth of the allegations of said petitions. These motions contained averments that appellant\u2019s petitions did not contain allegations necessary to entitle appellant to the relief sought by him, and in reality amounted to demurrers to the Farmer-Debtor petitions. While it is said that, for the purpose of testing the legal sufficiency of a pleading, a demurrer admits the allegations of the pleading, it has never been held that by filing a demurrer to a pleading a party is thereby precluded from ever disputing the allegations of the pleading to which the demurrer was filed. \u201cThe admissions by demurrer are only for the purpose of passing upon the sufficiency in law of the pleading .demurred to, and they are not evidence, nor an absolute admission dispensing with proof upon the trial on the merits.\u201d 49 C. J. 442.\nThe district court did not find or declare that appellant owned the property described in the petition or that appellee bank owed him the amount claimed by appellant or any other sum. The effect of the district court\u2019s order was'merely a declaration that, assuming the truth of appellant\u2019s petition, appellant\u2019s financial condition was such that the bankruptcy court could not afford him any relief.\nFurthermore, the district court had no jurisdiction to try and determine \u2022 the disputed question of the existence and amount of any alleged indebtedness of appellee bank to appellant or the title of the property claimed by appellant and held adversely by'appellees.. All the parties being residents of Arkansas the jurisdiction to litigate any of those matters was solely in the state courts. \u201cThe general rule is that a trustee in bankruptcy, wishing to sue on behalf of the estate, must resort to the same courts to which those whose rights he represents might have resorted if bankruptcy had not intervened.\u201d 8 C. J. S. 1134, \u00a7 348.\nWhile appellant in his complaint set forth that he based his action \u201con the findings and judgment of the District Court of the United States for the Western District of Arkansas . . . entered on March 30, 1942,\u201d and did not anywhere in his complaint filed in the lower court attack the validity of the foreclosure proceedings on the ground that these proceedings were void because the filing of his first Farmer-Debtor petition in the district court deprived the state court of jurisdiction to proceed further in the foreclosure suit, the pendency of this petition does appear from the exhibits to appellant\u2019s complaint in the case at bar, and, under our rule that in equity the averments of the complaint are controlled by the exhibits, it might be said that the complaint was sufficient to raise this question. We conclude, however, that a contention that the order of the chancery court confirming the foreclosure sale was void because of the pendency of the bankruptcy proceeding could not be sustained by the record in this case.\nAppellant\u2019s Farmer-Debtor petition in the first proceeding (No. 247-B) was dismissed by the district court on July 1, 1935. That appellee bank, on July 17, 1935, filed a motion to dismiss, and the court made another order of dismissal on November 1, 1935, does not alter the fact that the proceeding was actually dismissed on July 1, 1935. The mere filing of an unnecessary motion by appellee bank and the making of an unnecessary order by the court would not serve to reinstate or to revive in any manner the proceeding which had been dismissed.\nTherefore, when the chancery court met on September 3, 1935, this situation existed: The property of ap-pellant had been sold under a decree rendered before the filing- of the Farmer-Debtor petition. No question as to the validity of this decree is or could properly be raised. While the sale was made after the filing of the bankruptcy petition, yet, before the report of sale came up for the approval of the court, the bankruptcy proceeding had been dismissed.\nConceding that, under the rule laid down by the Supreme Court of the United States in the case of Kalb v. Feuerstein, 308 U. S. 433, 60 S. Ct. 343, 84 L. Ed. 370, the filing- of the bankruptcy petition automatically suspended the power of the .state court to proceed further, the dismissal of the bankruptcy proceeding restored this power, so that the chancery court was authorized to act on the Commissioner\u2019s report. In the case of Union Joint Stock Land Bank of Detroit v. Carl Byerly, 60 S. Ct. 773, 84 L. Ed. 1041, 310 U. S. 1, it was said: \u201cAlthough the state court\u2019s jurisdiction was superseded by that of the bankruptcy court, it again attached upon the dismissal of the bankruptcy case, and, thenceforward, as respects the foreclosure suit, and the state court\u2019s procedure, it was as if no bankruptcy case had ever existed. \u2019 \u2019\nThe objection that the sale was made at a time when under the Bankruptcy Law it should have been stayed was one which the chancery court had plenary jurisdiction to hear and determine. The chancery court \u2019s order approving the sale -cured any irregularity affecting the sale and was a final adjudication of the matter, and, not having been appealed from, is a bar to appellant\u2019s instant suit. Neff v. Elder, 84 Ark. 277, 105 S. W. 260; Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250; Green v. Maddox, 97 Ark. 397, 134 S. W. 931; Glasscock v. Glasscock, 98 Ark. 151, 135 S. W. 835; Cassady v. Norris, 118 Ark. 449, 177 S. W. 10; 31 Am. Jur. 470.\nFurthermore, even if it had been shown that the order confirming the foreclosure sale was void, under the facts in this case it must be held that appellant was estopped by his conduct and his inaction to question the validity of this sale.\nAppellant was a party to the foreclosure suit. He had been served with summons therein. It was his duty to keep himself advised of the proceedings in this suit against him. Trumbull v. Harris, 114 Ark. 493, 170 S. W. 222. It must be presumed that he was fully aware of the progress in the case. Yet, after the decree was rendered against him, he stood by and permitted the sale to be made, and report of sale to be confirmed, without at any time calling his bankruptcy petition to the attention of the chancery court, or asking the bankruptcy court to stay the foreclosure proceedings. And, when directed by the sheriff in February, 1936, to turn over the property to the purchaser at the foreclosure sale he complied, without in any manner questioning the validity of the Commissioner\u2019s deed to appellee bank. He moved away from the state and did no act indicating a disposition or intention to challenge the validity of the foreclosure until more than five years after the sale. After he abandoned the land it was sold by appellee bank to appellees, Harris and Hines, who bought and improved the land in the belief that they were acquiring good title thereto. By his failure to act when he should have acted and by his tacit recognition of the validity of .the Commissioner\u2019s sale to appellee bank appellant is estopped now to question it. In 31 C. J. S. 368, \u00a7 115, it is said: \u201cA person who, with knowledge of the facts and of his rights, assents to, . . . judicial proceedings without objection is ordinarily bound by such proceedings as against one who has been misled to his injury.\u201d The same rule is announced in these cases: First National Bank v. Farmers\u2019 & Merchants\u2019 Bank, 159 Ark. 384, 252 S. W. 34; Adams v. Woods, 128 Ark. 441, 194 S. W. 849; Walker v. L. Maxcy, Inc., 103 F. 2d 24.\nThe doctrine of laches also would bar appellant\u2019s claim, if it were otherwise enforceable. Railway Company v. James, 54 Ark. 81, 15 S. W. 15; Ayers v. McRae, 71 Ark. 209, 72 S. W. 52. In the case of Jackson v. Becktold Printing & Book Manufacturing Company, 86 Ark. 591, 112 S. W. 161, 20 L. R. A., N. S., 454, it was sought by appellants to set aside in a collateral proceeding a foreclosure sale made in pursuance to a decree which was admittedly void because (at a time prior to the statute authorizing sucli a decree) it was rendered in vacation. The suit attacking tbe sale was filed almost five years after tbe property was sold. It appeared that tbe owners of tbe property, wbo were defendants in tbe original proceeding and plaintiffs in tbe latter proceeding, knew about tbe sale and made no objection at tbe time, and it also appeared that tbe purchaser at tbe foreclosure sale sold parcels of tbe land to different parties. This court held that tbe appellants were barred by laches, saying: \u201cThese facts render appellants guilty of laches in not sooner moving to annul tbe foreclosure decree, and make it inequitable to divest tbe numerous purchasers of rights which they acquired under what purported on its face to be a valid decree, and which they were led to believe appellants bad acquiesced in by their delay and negligence in moving to have it annulled and set aside.\u201d\nWe conclude that the decree of tbe lower court is correct, and it is affirmed.", "type": "majority", "author": "Robins, J." } ], "attorneys": [ "G. E. Snuggs, for appellant.", "G. B. Grumpier ancLNeill G. Marsh, for appellee." ], "corrections": "", "head_matter": "Jones v. The National Bank of Commerce of El Dorado.\n4-7402\n182 S. W. 2d 377\nOpinion delivered July 3, 1944.\nG. E. Snuggs, for appellant.\nG. B. Grumpier ancLNeill G. Marsh, for appellee." }, "file_name": "0613-01", "first_page_order": 651, "last_page_order": 660 }