138 Ark. 193 | Ark. | 1919
(after stating the facts). The complaint in this case proceeds upon the theory that the plaintiffs herein had a meritorious defense to the suit in the law court against them and they asked for a new trial upon the ground of unavoidable accident. After a careful examination of the petition, which is set forth in full in the statement of facts, we are of the Opinion that it fails to state facts sufficient to entitle the plaintiffs to a new trial in the law case. It is not enough that an inevitable accident has prevented the losing party from prosecuting an appeal based upon assignments of error occurring at the trial in the law case, but it must also clearly appear to the court that it would be contrary to equity and good conscience to allow the judgment to be enforced; else a court of equity declines to impose terms upon the prevailing party. Johnson v. Branch, 48 Ark. 538, and Whitehall v. Butler, 51 Ark. 341.
The complaint sets out the motion for a new trial and the bill of exceptions in the law case in order to show that the defendants therein had a meritorious defense to the action. We have not set these out for the reason, that if it be assumed that this is so we do not think that the defendants in the law case were prevented from obtaining a new trial or prosecuting their appeal by reason of inevitable accident or unavoidable casualty. In Vallentine v. Holland et al., 40 Ark. 338, the court said:
“Courts of chancery will direct a new trial after a judgment at law, when the complainant can show, first, that his adversary had obtained an advantage that can not be conscientiously retained, as that a successful plaintiff had no cause of action, or an unsuccesful defendant had a meritorious defense; second, that his own conduct has been free from fault and unmixed with negligence; third, that, owing to some fraud, accident or mistake, not imputable to him or his attorney, he was not present at the trial, nor able to niake his defense there; or if there, that he was prevented from moving for a new trial because the judges dispersed or the term lapsed before it could be made or disposed of; or that, on account of the existence of some other peculiar circumstance, he is without remedy at law. The subject is learnedly discussed in a note to 19 American Decisions, 609.” See also Jackson v. Woodruff, 57 Ark. 599, and Noe v. Layton, 76 Ark. 582. Many other decisions of this court might be cited to the same effect, but the rule is so firmly established as to render a further citation of authorities unnecessary. The only difficulty is in the application of the principles to a given state of facts. The effect of our decisions is that where the losing party had a remedy at law by appeal or motion for a new trial and has lost it, without fault on his part, by causes which he could not control preventing him from prosecuting his appeal in due time, equity will grant him relief. It has been said that “unavoidable casualty” signifies events or accidents which human prudence, foresight and sagacity can not prevent.”
It will be observed that “casualty or misfortune” that authorizes the granting of a new.trial must be “unavoidable.” The mere ordinary “casualty or misfortune” is not sufficient.- There must he some supervening and uncontrollable accident or casualty: Tested by this rule, the question is, were the plaintiffs by “unavoidable casualty or misfortune” prevented from prosecuting their appeal from the damage suit brought against them by Alex Pluna? The trial of the damage suit of Alex Pluna v. Fernwood Mining Company and Arkansas Anthracite Coal & Land Company for damages on account of a serious injury resulting from the alleged negligence of the defendants was concluded and a verdict reached on the 27th day of February, 1918, at 10 o’clock at night. The court indicated that it would adjourn at once, and on that account the defendants asked leave and were given until March 18, 1918, in which to file their motion for a new trial. The court adjourned to that day. On March 18, the motion for a new trial was filed and presented to the court and overruled. Ninety days were given the defendants in which to prepare and file a bill of exceptions. Pursuant to this order, the defendants would have had until June 17, 1918, in which to file a bill of exceptions had not a term of circuit court in which the case was tried commenced and ended before that time. The attorneys for the plaintiffs secured the stenographer’s transcript of the evidence on April 21, 1918. One of the defendant’s attorneys lived at Fort Smith and the other at Clarksville, Arkansas, where the trial was had. These attorneys met in Fort Smith on April 24th inst., and within four days thereafter they presented the bill of exceptions to local counsel of the plaintiffs at Clarksville. They stated to the attorneys for the defendants that Judge J. H. Evans of Booneville, Arkansas, was the leading counsel for the plaintiffs and that the bill of exceptions would have to be submitted to him for approval. Judge A. B. Priddy, the presiding judge at the trial in the law case and the regular judge, lived at Danville, Arkansas. The regular May term of the Johnson Circuit Court began on the first Monday in May, which was May 6, 1918. The attorneys for the defendants thought Judge Priddy would preside at this term of the court and intended to secure his signature to the bill of exceptions during the term. Judge Priddy, however, left the State on May 2, 1918, to attend the General Conference of the Methodist Church, South, at Atlanta, Georgia. The May term of the circuit court of Johnson County was held by a special judge elected for that purpose. Court adjourned for the term without any request having been made to him to adjourn to a day certain in order that the bill of exceptions might be submitted to Judge Priddy for his signature and approval. The May term of court was adjourned on May 11, 1918, and the bill of exceptions was presented to Judge Priddy after his return to the State and within the ninety days given by him within which to prepare and file it. Upon appeal, this court held that a bill of exceptions filed after the adjournment of the suceeding term of court in which the case was tried was filed too late to become a part of the record. Fernwood Mining Co. et al. v. Pluna, 136 Ark. 107, 205 S. W. 822.
The complaint also alleges that counsel for the defendants presented the bill of exceptions to Judge Evans as soon as he appeared at the May term of the court. Judge Evans told them that he had only come there for the purposé of visiting and taking home,‘if possible, his son, who was sick, and that if they would send the bill of exceptions to him at Booneville he would promptly examine it.
It will be observed that no request was made to the presiding judge to adjourn court to a given day so that the bill of exceptions in the meantime might be presented to Judge Priddy for his approval and signature on his return. Neither did the attorneys for the defendant ask the attorneys for the plaintiffs to agree in writing upon the correctness of the bill of exceptions by endorsements thereon signed by counsel for the respective parties,to the end that agreed bill of exceptions might become a part of the record in the case as effectively as though approved and signed by the judge trying the case. See Act of April 28, 1911, page 192.
. Counsel for the defendants earnestly insist that they had a right to rely upon Judge,Priddy attending and presiding at the May term of the Johnson Circuit Court. This may be true, but it only shows that they were not guilty of culpable negligence but falls short of showing unavoidable casualty within the legal definition of these words. Defendants do not allege in their complaint that Judge Priddy promised them that he would sign their bill of exceptions at the May term of the circuit court. If he had done so and had left the State and remained away for such a length of time that they could not have procured his signature to the bill of exceptions this might have been unavoidable casualty or misfortune within the meaning of the legal definition of the words. Then, too, when the attorneys for the defendants in the law case found out that Judge Priddy would not be present at the May term of the court they might have asked the special judge to adjourn over to the end that they might get Judge Priddy to sign the bill of exceptions upon his return to the State, or failing to do this, they might have asked the attorneys for the plaintiff to sign an agreed bill of exceptions under the statute above referred to. The testimony had been taken at the trial and transcribed by the regular court stenographer and there is nothing in the record to indicate that attorneys for the plaintiff would not have signed the bill of exceptions if asked to do so. Nothing was done to mislead the defendants in the law case, and when all the allegations of the complaint are read and considered in the light of each other we are of the opinion that it can not be said that the defendants in the law case were prevented from obtaining the presiding judge’s signature to their bill of exceptions by unavoidable casualty or misfortune within the legal definition of those terms.
It follows that the decree must be affirmed.