This case grew out of failure of the homestead-owner to pay a grocery bill amounting to more than a hundred dollars. As a safeguard against any rights his creditors might have, Davis conveyed to his wife the property in dispute. The family moved to California and left the grocer to shift as best he might. Of course, not being a resident of Arkansas, Davis' homestead would not be exempt; hence it was necessary, in order to consummate the plan of debt-evasion, to place the property in "innocent" hands. He may succeed with this scheme if we give 8222 of Pope's Digest a liberal construction; and ordinarily this would be done. *Page 395
But does the policy of liberal construction require, in the instant case, that the trial court's action in declining to set aside the decree avoiding R. F. Davis' deed to his wife be reversed? I think not. The applicable statute provides that in order to set aside a judgment rendered on constructive service the defendant shall appear in open court within two years, and not thereafter. The majority opinion holds that this limitation was tolled when the complaint, petition, or motion, was filed with the clerk.
It seems to me that the General Assembly, in enacting the statute of which 8222 is a copy, intended that the proceeding to vacate a judgment of the kind referred to should be brought to the attention of the court within the time expressed — that is, two years. "Open court," as shown by decisions collected in Words and Phrases, v. 29, p. 523, means a court formally opened "and engaged in the transaction of judicial affairs to which all persons who conduct themselves in an orderly manner are admitted." Another decision cited by Words and Phrases holds that the term "open court" signifies the time when the court can exercise its functions. In another case (People v. Margelis, 224 N.W. 605,246 Mich. 459) it was said that "open court" means a court with a judge presiding ". . . and a judge is not presiding in open court while absent from the courtroom and beyond knowledge of what was going on."
I think appellants' motion, petition, or complaint, came too late.
Mr. Justice ROBINS concurs in this dissent.