Smith v. Woolfolk/Opinion of the Court

The decree of the circuit court was justified by the facts appearing of record, unless one or both of the defenses set up in the answers of Smith were maintained.

We shall consider first the defense of set-off based upon the record of the proceedings and decree of the circuit court of Chicot county. We are of opinion that the decree of the Chicot circuit court, made on the twenty-eighth day of October, 1878, was, so far as it concerned Joseph S. Woolfolk and Lucy D., his wife, a final decree in the cause, and they were bound to take no notice of the subsequent proceedings, unless they were served with process or entered their voluntary appearance. By that decree the rights of the parties then before the court, as stated in the original bill, and all the assets of the estate of Craig actually or constructively within the jurisdiction of the court, were disposed of. It is true, the receiver was directed by the decree to proceed to collect the available assets of the estate. But, as has been stated, only a small sum, barely sufficient to pay the receiver's compensation, was collected by him, and this he was allowed to retain by the decree of the court. The petition filed by Todd, and the proceedings thereon subsequent to the decree of October 28, 1868, had no reference to any additional assets collected by the receiver after that date.

If the matter set up in the petition of Todd had been offered as an amendment to the original bill when the latter was on final hearing and Woolfolk and wife were before the court, there is no rule of equity pleading and practice, or of the jurisprudence of Arkansas, by which such an amendment could have been allowed and have become the basis of a decree. Shields v. Barrow, 17 How. 130; Hardin v. Boyd, 113 U.S. 756; S.C.., ante, 771; Walker v. Byers, 14 Ark. 246. As was said by this court in Shields v. Barrow, ubi supra: 'It is far better to require the complainant to begin anew. To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject.' So that, even if the decree made on the original bill was not final, the petition filed by Todd was so radical a departure from the case made and relief rayed by the original bill as to be a new suit and require service of process on the parties made defendant thereto. It instituted a new litigation on new and distinct issues not raised by the original pleadings, and between parties who were complainants in the original cause.

It is settled that one defendant cannot have a decree against a co-defendant without a cross-bill, with proper prayer, and process or answer, as in an original suit. Walker v. Byers, 14 Ark. 246; Gantt, Dig. § 4559; Cullum v. Erwin, 4 Ala. 452; Cummings' Heirs v. Gill's Heirs 6 Ala. 562; Shelby v. Smith's Heirs, 2 A. K. Marsh, 514. It follows, from the reason of this rule, that if one complainant can, under any circumstances, have a decree against another upon a supplemental or amended bill, it must be upon notice to the latter. After a decree disposing of the issues, and in accordance with the prayer of a bill, has been made, it is not competent for one of the parties, without a service of new process of appearance, to institute further proceedings on new issues and for new objects, although connected with the subject-matter of the original litigation, by merely giving the new proceedings the title of the original cause. If his bill begins a new litigation, the parties against whom he seeks relief are entitled to notice thereof, and without it they will not be bound; for the decree of a court rendered against a party who has not been heard, and has had no chance to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other court. Windsor v. McVeigh, 93 U.S. 274.

Upon the original bill, filed in the Chicot circuit court by Todd, it was not possible, therefore, for Todd to get a valid money decree against Woolfolk and his wife without new and adversary pleadings and service of process on Woolfolk, and giving him his day in court. Woolfolk and wife had the right to rely on these principles of law, and were not bound to take notice of the petition of Todd, and the proceedings thereunder. Todd and his counsel appear to have seen the necessity of notice to Woolfolk and his wife, and made an attempt to give them notice of the petition filed by Todd; but the record shows that no lawful notice was served on them. It fails to show notice of any kind. The only service which the defendants assert to have been made on Woolfolk and wife was the service on Carlton, as their attorney, who was not their attorney, but, as he averred, the attorney of Todd, the petitioner, and the mailing to their address by the sheriff of the copy of the order. Conceding that these kinds of service, if executed according to law, were good under the statute of Arkansas, which they are not, they would have been but substituted service, and could not support a personal decree against Woolfolk and wife. Pennoyer v. Neff, 95 U.S. 714; Harkness v. Hyde, 98 U.S. 476; Brooklyn v. Insurance Co. 99 U.S. 362; Empire v. Darlington, 101 U.S. 87.

It follows that the record of the proceedings and decree of the circuit court of Chicot county, subsequent to the decree made in the case of The Creditors of Junius W. Craig v. Emma J. Wright, Executrix, and others, on October 28, 1868, was not binding upon Woolfolk and wife, and could not be received in evidence against them. As this record contained the only proof offered by the appellants of any set-off, in behalf of any one whatever, against the mortgage debt due from Todd to Woolfolk, which the present suit was brought to enforce, it follows that the defense of set-off pleaded in the answers of the appellants failed for want of proof, even conceding that they were entitled to make the set-off.

It remains to consider the plea of the statute of limitations. The note secured by mortgage, which is the basis of this suit, fell due October 30, 1870, and the suit was brought October 27, 1879. It is insisted that the suit to foreclose the mortgage was under the law of Arkansas, barred in seven years from the maturity of the note. In the case of Birnie v. Main, 29 Ark. 591, it was declared by the supreme court of Arkansas that 'to bar a suit for the foreclosure of a mortgage, there must not only be an adverse possession for such length of time as would bar an action of ejectment, but there must be an open and notorious denial of the mortgagee's title; otherwise the possession of the mortgagor was the possession of the mortgagee.' And in Coldcleugh v. Johnson, 34 Ark. 312, it was said by the same court that 'the possession of a mortgagor is not to be deemed adverse until he makes some claim or does some open and notorious act adverse to the rights of the mort gagee.' See, also, Hardin v. Boyd, 113 U.S. 756; S.C.., ante, 771. The only evidence in the record of any such act by either Smith or Todd was the denial by Todd-in his answer filed on April 18, 1876, in a suit brought by Woolfolk against him in the circuit court of Owen county, Kentucky, on one of the mortgage notes-that he was indebted to Woolfolk thereon. Up to that date, at least, the possession of Todd and Smith was the possession f Woolfolk. This suit to foreclose the mortgage was not therefore barred.

Decree affirmed.