{ "id": 1614189, "name": "Wright v. Ford", "name_abbreviation": "Wright v. Ford", "decision_date": "1949-11-14", "docket_number": "4-8965", "first_page": "55", "last_page": "61", "citations": [ { "type": "official", "cite": "216 Ark. 55" }, { "type": "parallel", "cite": "224 S.W.2d 50" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "124 S. W. 752", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "93 Ark. 234", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546895 ], "opinion_index": 0, "case_paths": [ "/ark/93/0234-01" ] }, { "cite": "141 S. W. 501", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "101 Ark. 142", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311069 ], "opinion_index": 0, "case_paths": [ "/ark/101/0142-01" ] }, { "cite": "212 Ark. 410", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470167 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/212/0410-01" ] }, { "cite": "93 S. W. 2d 325", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 603", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415068 ], "opinion_index": 0, "case_paths": [ "/ark/192/0603-01" ] }, { "cite": "200 Ark. 394", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453525 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/200/0394-01" ] }, { "cite": "201 Ark. 984", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725557 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/201/0984-01" ] }, { "cite": "96 S. W. 2d 952", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 1111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1414967 ], "opinion_index": 0, "case_paths": [ "/ark/192/1111-01" ] }, { "cite": "149 S. W. 662", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "104 Ark. 562", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350647 ], "opinion_index": 0, "case_paths": [ "/ark/104/0562-01" ] }, { "cite": "155 S. W. 122", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "107 Ark. 415", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1343998 ], "opinion_index": 0, "case_paths": [ "/ark/107/0415-01" ] } ], "analysis": { "cardinality": 682, "char_count": 11583, "ocr_confidence": 0.516, "pagerank": { "raw": 3.4215101309994994e-07, "percentile": 0.8786489096468558 }, "sha256": "af6eeb704ab039ebe8a64f66f682bbe4cfaf39f9c4e731571d1e24a302f8edda", "simhash": "1:e8dc5b04321e09b6", "word_count": 1958 }, "last_updated": "2023-07-14T19:41:58.287119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wright v. Ford." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nAppellants challenge the Court\u2019s right, after term, to set aside an order of confirmation. The Judge expressly found that fraud was not practiced upon the Court in procurement of the judgment.\nThe property bid in by appellee is part of an estate under Probate.administration. R. D. Wright died intestate in April, 1947. His widow remarried, and as Mrs. Georgia L. Hoover petitioned for allotment of dower. In the proceedings for assignment it became necessary to sell property known locally as Wright\u2019s Tourist Court, fronting on Albert Pike Highway. Appellee Ford owned valuable realty near the tourist court, and during R. D. Wright\u2019s lifetime had endeavored to purchase the lot involved in this litigation.\nThe commissioners were directed to lay off property for the widow\u2019s dower, but in doing so to exclude her homestead. In Mrs. Hoover\u2019s petition, and in the Court\u2019s order, the Wright lands were described as being on Thornton Street, running west 200 feet along the highway. The homestead would extend 100 feet from Thornton Street.\nWhen the commissioners reported that they could not, without prejudice to the widow and heirs, recommend the assignment of dower in kind, they were ordered to sell all of the property except the homestead. Ford personally appeared at the sale and made the highest bid, raising his nearest competitor by $100 with an offer of $19,000.\nNovember 22, 1948 \u2014 twelve days after the sale was concluded \u2014 action of the commissioners was confirmed and execution of a deed was ordered. December 10th Ford filed with the Probate Clerk a petition to vacate the order of confirmation, alleging, in effect, that a discrepancy of five feet and failure of the commissioners to accurately describe the tourist court property, and to truly advertise it, rendered the transaction unconscionable and void. According to the petition, the commissioners had power to sell only 95 feet of the frontage on Albert Pike Highway, etc. The only public notice, Ford alleged, was a display advertisement signed by Wood and Chesnutt as attorneys, as distinguished from the Court\u2019s order that the commissioners cause legal notice to be printed for twenty days in a newspaper of general circulation. In an amendment to his pleading, Ford asked that the purchase price be proportionately abated if the Court should find that confirmation should not .be vacated.\nIn a demurrer and response to the petition, Mrs. Hoover and others in interest asserted (1) that the petition did not allege facts sufficient in law to justify the relief, and (2) they denied that Ford was in any way misled. They affirmatively alleged that appellee not only knew where the true boundaries were, but that in making the sale the commissioners publicly announced that the printed advertisements were erroneous; therefore, in buying, Ford actually received the property he intended to acquire. The response and demurrer were verified, but Ford\u2019s petition was not. No action was taken by the Court during the term at which the confirmation order was made, nor does the record disclose an attempt to get consideration. When the December term began witnesses were heard, and a judgment vacating the action of confirmation was entered.\nFord testified that he considered the property to be highly desirable, and that he was willing to bid liberally for it, but this willingness was predicated upon his belief that the highway frontage was 100 feet. He mentioned a shortage in the rear measurement, but did not regard this as important as the \u2018 \u2018 underage \u2019 \u2019 of five percent mentioned in the petition. Approximately a week before the bidding, Ford went to Judge Scott Wood, who then represented Mrs. Hoover, and asked for a plat. Judge Wood sent him to another party, but explained that Mrs. Hoover would be glad to show where the lines were. Ford says he talked with Mrs. Hoover and relied upon the corners she indicated. A stone, painted white and set in the ground for ornamental purposes, figured in the discussions.\nR. S. Smith, the commissioner who conducted the sale, testified that when the bidding began he had a copy of the advertisement. When he read the figures showing 100 feet along the highway, some one spoke up and said \u201cninety-five.\u201d Smith thought he made some facetious remark as to his own inability to read correctly. Continuing, he testified: \u201cPublic attention was called to the fact that the plat showed only 95 feet. The plat was handed out to any one who was interested.\u201d Smith was of opinion that Ford was present when the discrepancy announcement was made. He made the first bid, and there had been an announcement of the five-foot variation before that time.\nThe order of confirmation contains a recital that the property was duly advertised as provided by law, and that all jurisdictional requirements were met. Judge Wood, as a witness for the appellants, verified the fact of legal publication, although it is conceded that the description called for 100 feet.\nWe think a preponderance of the testimony places Ford in a position where it is inconceivable that he did not hear the discussions regarding front-foot shortage; and on the purely factual issue we would be compelled to say that when his bids were made the situation was such that he must have known what was being done.\nA Court\u2019s control of its judgments and decrees during the term is inherent, and exists without reference to any statute. Wells Fargo & Co. Express v. W. B. Baker Lumber Co., 107 Ark. 415, 155 S. W. 122. But, except as authorized by statute, this control ends when the term expires, and one seeking relief must find his right in a subdivision of Pope\u2019s Digest, \u00a7 8246, 2 Ark. Stats. 29-506, [or if in equity by bill of review. See Long v. Long, 104 Ark. 562, 149 S. W. 662], Bank of Russellville v. Walthall, 192 Ark. 1111, 96 S. W. 2d 952. The fourth statutory ground authorizing avoidance is for fraud practiced on the Court in procuring the judgment or decree. It is this subdivision that appellee relies upon, in addition to his contention that the Court may act within discretionary limits at a subsequent term where the motion to vacate is filed at the judgment or decree term.\nAppellee is entirely correct in saying that the Court\u2019s discretion to vacate an improper judgment or decree, if exercised before lapse of the term, will not be controlled on appeal. We think, however, that this discretion ends with the term unless there are extraordinary circumstances from which an inference can be fairly drawn that the parties in interest knew it was intended that action on the motion be carried over. Unless this intent is clearly disclosed, an innocent person might be adversely affected. Certainly one dealing with real property and finding of record, prima facie, a final order, should not suffer at a later date because action was taken in a way not authorized by law, and at a time when the Court\u2019s discretion had ended.\nA phrase tending to support appellant\u2019s contention that with filing of the motion during term the Court had a right to act at the following term, is found in Young v. Young, Guardian, 201 Ark. 984, 147 S. W. 2d 736. It was there said that \u2018 \u2018 In the instant case the motion to vacate was made before the May term of Poinsett chancery court had been succeeded by the December term, and the order setting the [probate] judgment aside was not void for want of jurisdiction.\u201d This Court reversed the action of the trial court in vacating the judgment. Assuming that comment on jurisdiction in the Young case was not dictum, still the record shows that the motion to vacate, although filed during the trial term, was verified.\nOur attention has not been called to any case where an unverified motion, filed during term and carried over, was treated as sufficient when dealt with at the subsequent term. The requirement for statutory compliance was stressed in Merriott v. Kilgore, 200 Ark. 394, 139 S. W. 2d 387, where it is indicated that an unverified motion to vacate could not be treated as a complaint.\nQuoting from McDonald v. Olla State Bank, 192 Ark. 603, 93 S. W. 2d 325, appellant says that \u201cthis principal [of sustaining the trial court\u2019s discretion] was later upheld in Jaynes v. State, 212 Ark. 410, 206 S. W. 2d 7. One of the points urged in the McDonald case was that, construed from a judicial standpoint, the decree was rendered in November, during the October, 1934, term of court. Insistence on this date was predicated upon certain written memoranda dated November 29. This Court, however, concluded that \u201cthe cause of action was primarily adjudicated April 15, 1935,\u201d . . . [and] \u201cIt follows from this determination that appellee\u2019s motion to vacate, filed on September 9, 1935, fell within the April, 1935, term of said court.\u201d In the Jaynes case it was held that Circuit Court did not abuse its discretion in refusing to vacate a judgment; but there the motion was filed and acted upon during the same term.\nAn opinion written by Chief Justice McCulloch\u2014 Moore v. Price, 101 Ark. 142, 141 S. W. 501\u2014would from the facts recited lend substance to appellant\u2019s position, but this apparent support is dissipated by an examination of the original transcript which shows that the motion was not under the statute, but, as expressed by the petitioner, was to be treated as a bill of review.\nRelief to which the plaintiff, at the time of trial, was legally entitled in his'personal injury suit, was denied in St. Louis & N. A. R. Co. v. Bratton, 93 Ark. 234, 124 S. W. 752, on the railroad company\u2019s appeal from an order, nunc pro time, made at a subsequent term. In the circumstances of the case the plaintiff had originally been entitled to have the judgment made a lien upon the defendant\u2019s property. In this Court\u2019s opinion, upholding the railroad company\u2019s contention that the trial Court was without power to declare the lien in the manner attempted, Judge Frauenthal said:\n\u201cIn order to give to the records of a court the utmost sanctity and an absolute verity, the common law declared that no judgment could be amended after the term at which it was rendered. But where the entry through some plain error fails to correspond with the judgment that was.actually rendered, the principles of justice obviously require that it should be corrected; and therefore the rule of the common law has been modified in modern practice to that end. . . . [But] under the guise of amendment, there is no authority to revise a judgment, or to correct a judicial mistake, or to adjudicate a matter which might have been considered at the time of the trial, or to grant an additional relief which was not in the contemplation of the Court at the time the judgment was rendered. \u2019 \u2019\nIn view of the Court\u2019s express finding that fraud was not practiced in procurement of the judgment, the action vacating it conld not be sustained even if the motion bad been verified;' but since the statutory formality of verification was not complied with so that, at the succeeding term, the motion could have been treated as a complaint and within the statute, and since there were no extraordinary circumstances showing that jurisdiction had been retained, our holding goes only to the proposition that the Court was without power to vacate the order of confirmation.\nReversed with directions to reinstate the order of confirmation.", "type": "majority", "author": "Griffin Smith, Chief Justice." } ], "attorneys": [ "Virgil Evans, McMath, Leatherman, Schoenfeld & Whittington and James W. Chesnutt, for appellant.", "R. J. Glover and G. T. Cotham, for appellee." ], "corrections": "", "head_matter": "Wright v. Ford.\n4-8965\n224 S. W. 2d 50\nOpinion delivered November 14, 1949.\nVirgil Evans, McMath, Leatherman, Schoenfeld & Whittington and James W. Chesnutt, for appellant.\nR. J. Glover and G. T. Cotham, for appellee." }, "file_name": "0055-01", "first_page_order": 79, "last_page_order": 85 }