Ozment v. Mann

Paul Ward, Associate Justice (dissenting). The majority affirm the case on the ground that no notice was given to appellees when appellants petitioned for the two nunc pro tunc orders. My reasons for disagreeing with the majority are as hereafter set out.

1. It was not necessary, in a proceeding of this type to give notice to appellees.

The cases relied on by the majority are not in point. The case cited by the majority to show notice must be given is Simpson v. Talbot, 72 Ark. 185 , 79 S. W. 761 . This was a mortgage foreclosure suit. After the decree was entered and after the term of the court had elapsed, one party applied to the court to have the decree amended to speak the truth. No notice was given to the other party to the foreclosure suit. In a short opinion this Court said:

“The chancery court had the authority to amend the record of its decree at a subsequent term, so as to make it speak the truth, but it cannot do so without notice first given to the party against whom it is made.” (Emphasis added.)

It seems clear to me that the italicized words of the court meant against the other party to the original suit. Any doubt as to whom the court meant in using the above words was removed by this Court in the case of Irby v. Drusch, 216 Ark. 130 , 224 S. W. 2d 366 . In that case this Court, in referring to the Simpson case, supra, said:

“The court’s order was therefore erroneous for notice must first be given to parties to the original action when nunc pro tunc relief is sought. Simpson v. Talbot, 72 Ark. 185 , 79 S. W. 761 ; Bridwell v. Davis, 206 Ark. 445 , 175 S. W. 2d 992 .” (Emphasis added.)

It is hardly necessary to point out that these appellees were not parties to the original adoption proceedings in Bradley County on October 10, 1898.

2. In order to sustain the result reached by the majority opinion it is necessary to overrule the case of Grimes v. Jones, 193 Ark. 858 , 103 S. W. 2d 359 , which they completely ignored and which is, to my knowledge, the only case in point. In that case Grimes contended:

“that the appellees, under the amended pleadings, would be allowed to introduce an order of the probate court amending, nunc pro tunc, the original order of adoption; that the amending order was made without notice to appellant ; that the first order was void ab initio ...” (Emphasis added.)

In spite of such, contention we affirmed the trial court.

In this case there are strong equities in favor of appellants who stand to lose their inheritance because of no fault on their part but because of a doubtful technicality of the law applied by the majority. In a court of equity all doubts should be resolved to achieve equity — not to defeat equity.

Johnson, J., joins in this dissent.