Fowler v. Byers, 16 Ark. 196 (1855)

Jan. 1855 · Arkansas Supreme Court

16 Ark. 196

Fowler as ad. et al. vs. Byers as ad.

A Circuit Judge is not disqualified to preside, where he is related by affinity within the constitutional degrees, to one of the parties in a cause, who is merely a trustee, and has no interest in the determination of the cause.

A decree of foreclosure of a mortgage should fix some certain time, within which the amount decreed against the property, with interest and cost, might be paid, in default whereof the sale to be made.

Ippeal from the Cvrowit Oowrt of Independence Govmty in Ohmeery.

Hon. Beaueort H. Neely, Circuit Judge.

Fowler, for tbe appellants,

contended that tbe circuit judge was disqualified to act by tbe constitution and tbe laws. Kelley et al. vs. Neely, (Judge) 12 Arh. Rep. 657. That tbe decree was rendered for more than was due on tbe debt. That tbe decree does not direct that tbe lands be sold in tbe order prescribed in tbe opinion of this court. That tbe decree should have been, that unless tbe amount should be paid by a certain day, tbe mor-gage be foreclosed, and a sale take place, &c. Downing vs. Palmateer, 1 Mon. Rep. 67 ; Martin vs. Wade, 5 ib. 80 / 6 ib, 253; Davis vs. Phelps, 7 ib, 637.

War. Byebs, for appellees.

We insist that this case is not within tbe spirit or meaning of our constitution and statute: 1st. Because the decree in fact was rendered by tbe Supreme Court, and the Circuit Court was directed to enter it: 2d. Because Egner bad no interest iu the suit. He was a mere nominal party without interst.

Mr Justice Scott

delivered tbe opinion of tbe Court.

This cause was decided here, at tbe July term, 1853, (Byers adm. vs. Fowler as adm. et al., 14 Ark. R. 87,) and was remanded to tbe Independence Circuit Court in Chancery, with instructions to enter up a decree in accordance with tbe opinion then delivered, and to execute it accordingly. At the March term of that court, the mandate of this court was filed and a decree was entered up on the 20th of that month, against the objection and protest of the defendants, who have brought the case hero again by appeal. The objection against the presiding judge was, that his present wife is a niece, to wit: the daughter of the sister of tbe whole-blood of the present wife of Joseph II. Egner, one of the defendants below.

We thing there is nothing in the objection, because of Egner’s want of interest in tbe controversy; tbe complainants seeking no decree against him personally, nor against any thing in which he had any interest. He being but a trustee, bolding tbe mero naked legal title of a portion of tbe lands proceeded against.

The decree, however, is erroneous in failing to conform to the opinion of this court, in several particulars.

1st. It is excessive in amount, by tbe sum of upwards of $24, by any plausible mode of computing tbe interest, and by tbe sum of upwards of $164, by the proper mode, according to tbe computations of tbe clerk of this court; which, upon examination, we have found correct.

2d. It fails to direct that tbe lands conveyed by Fowler and wife to Denton, in trust, (which lands are not included in the mortgage to Cox) shall, in the order of conducting tbe sale, be first' exposed. Then secondly, all tbe mortgaged lands, except the tracts conveyed to Buddell. Then thirdly, these last mentioned lands. But tbe two former are placed upon one common footing: no such discrimination being made between them, as to tbe order in which they shall be exposed to sale, as was directed by the opinion of this court. But this is in no way injurious to Bud-dell, and, therefore, no ground of reversal.

The decree is also defective in failing to fix some certain time, within which the amount decreed against the lands, with interest and costs, might be paid, in default whereof, the sale to be made.

Under this state of things, we feel bound to set aside this decree, at the cost of the appellee, and shall direct a final decree to be entered up in this court, sTich as the Circuit Court of Independence county ought to have entered up, and cause the same to be certified to that court under the provisions of the statute, (Digest, oh. 28, p. 244) at the costs of the appellants, to be paid out of the proceeds of the sale, like all other costs, except that for this erroneous decree now reversed.

Absent, Mr. Justice "WalkeR.