ON REHEARING.
Hide, C. J.Appellee seeks to have the judgment changed except as to Mrs. Adkins, and appellants seek to have it changed so as to permit her recovery. The .court has carefully gone into the case again, and adheres to the decision rendered. It is pointed out that an undenied allegation of the complaint is that Mamie Adkins, nee Jones, was a married woman at the time of the rendition of the original decree. It was sought to bring her within the 5th paragraph of section 4431, Kirby’s Digest, instead of the 8th paragraph, under which this recovery was sustained for all the Jones heirs who were minors at the time of the rendition of the decree sought to be vacated.
To obtain.,relief under paragraph 5, two elements must concur: (1) The disabled condition of the moving party must not appear in the record; and (2) the error which should cause the judgment to be vacated must not appear in the proceedings.
It was not intended to give married women, minors and lunatics a remedy cumulative to their existing remedies by appeal, writ of error, certiorari or other appropriate method of review, which would correct the.error where it was apparent in the proceedings. When the error and condition do not appear in the proceedings, and therefore these .remedies are unavailing, then this statute reaches erroneous proceedings not otherwise correctible in favor of the persons laboring under disabilities therein mentioned. Richardson v. Matthews, 58 Ark. 484, is an application of this statute. A judgment on a promissory note was rendered against a married woman. She had not appeared, and on its face the judgment was valid; but as a matter of fact she was surety for her husband and son on the note, and was a feme covert. The proof of her condition and those other facts rendered it an erroneous proceeding, but one not co.rrectible without this statute, and it was held to apply. In this case the coverture of Mrs. Adkins did not affect the questions involved; and she appeared and put into the proceedings the facts of the case, and these facts disclosed the error of the court in the decree rendered. The court and her counsel put' a construction on the decision in Woolfork v. Buckner, 60 Ark. 165, which rendered it fatal to appellant’s cause, and therefore an appeal was abandoned; but that was an erroneous construction, as was shown when Sparks v. Farris, 71 Ark. 117, was decided. Recently this court on appeal corrected a similar misconception of it in Rucker v. Dixon, 78 Ark. 99.
Therefore the error did appear in the proceeding in the original case, and could have been corrected on appeal, and this statute is not applicable, and the rights of appellants must stand or fall on the 8th paragraph of section 4431; and for the reason pointed out Mrs. Adkins is precluded from recovery under it.
Justices Battre and Riddick differ with the majority of the court on the point that Mrs. Adkins is barred. They contend that she had one year after reaching 21 years to vacate the decree.
The motion is overruled.