{
  "id": 1495695,
  "name": "Wheeler v. Bennett",
  "name_abbreviation": "Wheeler v. Bennett",
  "decision_date": "1906-05-28",
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  "last_updated": "2023-07-14T16:52:58.980272+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "Wheeler v. Bennett."
    ],
    "opinions": [
      {
        "text": "McCulloch, J.\nThis is a suit in the chancery court of Mississippi County, Chickasawba District, brought by appellant, Cicero Wheeler, against appellees, B. F. Bennett, Dora Lollar, and certain other parties to annul and vacate a decree of that court rendered at a former term in a suit instituted by appellees against appellant, and others, for partition of. certain lands aggregating several thousand acres, the particular tract claimed by appellant having been allotted to appellees Bennett and Lolar in the division. He alleged, for grounds of complaint, that he was not served with summons, did not appear in the suit, and had no information of the pendency thereof until after the rendition of the decree.\nThe decree for partition sought to be annulled was rendered at the October term, 1900, and the final order of the court confirming the report of commissioners dividing the lands was rendered at the October term, 1901. The present suit was commenced March 11, 1903.\nAppellees alleged, among other defenses, that appellant had on September 2, 1902, instituted suit against them in the same court, setting forth the same cause of action and seeking the same relief as in this suit, and that said court at the October term, 1902, rendered a final decree, upon the pleadings and proof, dismissing the complaint for want of equity. Said decree is pleaded as a bar to appellant\u2019s right to maintain this suit.\nThe complaint in the former suit is set forth in the record, and discloses substantially the same allegations as contained in the complaint in the present suit.\nThe decree is as follows:\n\u201cChancery Court, Chickasawba District, Mississippi County, Arkansas.\n\u201cCicero Wheeler, Plaintiff,\nv.\nB. F. Bennett and Dora Lollar, Defendants.\n\u201cComes the plaintiff by his attorneys, Little & Buck, and the defendant, though duly served with process by warning order published as the law directs, came not, but made default. This cause is heard upon the pleadings, affidavit of plaintiff and the record of decree and report of partition in the case of Bennett et al.. v. Bugg et al., in the chancery court of Mississippi County, and the argument of counsel, and, upon consideration, the court finds that there is no equity in the plaintiff\u2019s complaint. It is therefore considered by the court, adjudged and decreed that plaintiff\u2019s complaint herein be and the same is dismissed at plaintiff\u2019s cost.\u201d\nIt is urged in behalf of appellant that the decree in the former suit was in effect a nonsuit or dismissal for want of prosecution, and was, therefore, without prejudice to another suit upon the same cause of action. The recitals of the decree do not sustain that contention. It appears therefrom that the cause was heard by the court \u201cupon the pleadings and affidavit of plaintiff and the record of decree,\u201d etc., and that upon consideration the court found no equity in the complaint, and dismissed it. The defendants in that suit (appellees Bennett and Dollar) were constructively summoned, and made no appearance; so, notwithstanding the default, appellant was required by law to prove his cause of action against them. Kirby\u2019s Digest, \u00a7 6253. The court found the proof to be insufficient to sustain the allegations of the complaint, and dismissed it. That decree was not appealed from or set aside, so far as this record discloses, and therefore barred appellant from prosecuting another suit upon the same cause of action.\nAffirmed.",
        "type": "majority",
        "author": "McCulloch, J."
      }
    ],
    "attorneys": [
      "Driver & Harrison, for appellant:",
      "D. P. Taylor and /. T. Coston, for appellees."
    ],
    "corrections": "",
    "head_matter": "Wheeler v. Bennett.\nOpinion delivered May 28, 1906.\nJudgment' \u2014 EES judicata. \u2014 Where, in a proceeding based upon constructive service, the defendants made default, a judgment reciting that the cause was heard upon the evidence and dismissing the complaint for want of equity bars the plaintiff from prosecuting another suit upon the same cause of action.\nAppeal from Mississippi Chancery Court; Edward D. Robertson, Chancellor;\naffirmed..\nDriver & Harrison, for appellant:\n1. A judgment rendered in an adversary suit without notice is void. 49 Ark. 397; Freeman on Judgments, 4 Ed. \u00a7 117; 58 Ark. 181; 71 Ark. 565.\n2. Appellant is not estopped by the decree rendered at the October term, 1902. The burden is upon the appellees to show to the satisfaction of the court an estoppel by virtue of this decree. 55 Ark. 286. The complaint in that suit was an effort to remove a cloud from title. It discloses that petitioner was out of possession, that it was an effort to attack collaterally the former decree under which appellees claimed title, and the decree dismissing this complaint was in effect an involuntary nonsuit. 47 Ark. 120, and cases cited.\n3. It is patent upon the face of the complaint upon which the decree of dismissal was based that no cause of action was urged, and it could not support a decree that affected the rights of defendants. 62 Ark. 439; 57 Ark. 97. The merits were \u2022 never presented in the petition to remove cloud from the title, - and no binding decree could have been rendered thereon. 62 Ark. 78; 94 U. S. 608.\nD. P. Taylor and /. T. Coston, for appellees.\n1. It is conceded that a judgment without notice is void, but the question of service upon appellant has been litigated, and decided adversely to his contention by the decree rendered in October, 1902. His complaint stated a good cause of action. Bennett and Dollar were nonresidents. The court heard plaintiff\u2019s evidence, and dismissed the complaint for want of equity. It is res judicata. Black, Judgments, \u00a7 609, subsec. 2; lb. \u00a7 614; 89 Fed. 652; 88 S. W. 980. In an action against non-residents plaintiff must substantiate his complaint by proof. Kirby\u2019s Digest, \u00a7 6253. A dismissal or a default may be the basis for a judgment on the merits. 85 Fed. 636; 7 Wall. 109; 157 U. S. 691; 166 U. S. 518; 152 U. S. 257.\n2. As to the partition suit, the record shows that Wheeler was served, as appears by the sheriff\u2019s return, that all parties appeared by solicitors at the submission of the cause, and that all parties consented to the approval and confirmation of the report. These recitals are not contradicted. 61 Ark. 474. The presumption in favor of jurisdiction is conclusive.. 87 S. W. 436; 80 S. W. 884.\n3. Appellant is not entitled to relief because of his own laches. 50 Ark. 462; 28 Minn. 132; 6 Wis. 164; 98 Ind. 165; 190 Pa. 345; 62 Minn. 18; 71 Hun, 519."
  },
  "file_name": "0210-01",
  "first_page_order": 230,
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