*1 Fitzwater v. Harris. 328 W. 2d 501
5-1929 S. Oрinion 9, delivered November 1959. appellant. Orion E. Gates, for appellee. John Gibson, F. appeal
Ed. F. McFaddin, Associate Justice. This study question necessitates posed of Act No. 53 1957. Tbe of ruling correctness of Circuit plaintiffs against refused the because twenty-one of his failure to file days after service of summons. chrоnological
Here is the of events: order January appellants, plaintiffs, On against ap- filed action in the Drew Circuit Court pellee, complaint sought damаges William Harris. The alleged mishap. anof traffic
(b) defendant, Harris, Summons served on County January January 22,1958; Chicot and on 23rd attorney, Harris’ wrote the Drew Gibson, Mr. Circuit copy сomplaint. Clerk and obtained of Judge was in (c) purpose setting County for the cases for the Drew *2 ensuing would convene which Court term February, (the Monday as February third 17,1958 on Stats.). 22-310 Ark. § fixed plaintiffs, (d) Gibson, the and Mr. Mr. Gates, Judge present before Circuit both defendant, the were Judge the February and dictated 7th; on Golden Golden following of what as his recollection into record transpired on that occasion: including docket, set the Court
“On following was notation and on that date case, this and reset’, to bе 2/17/58, made Court: ‘Set transpired what on that date Mr. Gibson I recall that he to file a motion order wished stated plaintiffs permission by some have the examined have responded immediately physician and that Mr. Gates necessary, that he would them to an submit wasn’t place. any time reasonable That was examination motion.” verbal (e) answer, 13th defendant filed his On twenty-two days day after of the service was which of summons. plaintiffs
(f) their motion 17th filed default, answer and since answer strike day filed one lаte. was too (g) denied the motion to strike Circuit Court the motion for default; and and correctness of that appeal. ruling is the sole on this issue1 argument In briefs in the orаl before this and appellants Act No. 49 of insist that Court, cite 1955 and 1After the motion to strike de denial of the and the motion for jury judg fault, ment for the order was and the cаse tried to a in a verdict and resulted preserved defendant; objections but default, denying the strike and the refusal motion to the issue reaches this thus Court. mandatory thе law2 it under Circuit Court against the render since he had twenty-one days file an after failed to appellants service; cite, alia, Metzler, inter Walden v. Pyle v. Amsler, 227 Ark. 301 S. W. 2d 2d 441. 227 Ark. S. W. These cases were decided exactly under Act No. 49 of 1955 and hold what the appellants appellants say; apparently have failed propеr importance attach the to Act No. 53 of 1957, ger amended said No. 49 Act of 1955. The portion mane of Act. 49No. reads: “Judgment by default shall be rendered any casе where defense has not been filed provided, within the time allowed this Act; that the *3 may good filing Court for cause allow time further for application granting a if defеnse, for further time is expiration period made before the of within which the defense should have been filed.” quoted language of the above Act was amendеd by emphasize Act No. 53 of 1957; and below we the amendatory language for information: convenient
“Judgment by default shall be rendered Court any appearance in general pleading, case where an or either special,
or has not been filed the time provided, allowed may Act; this that Court for good appearance filing cause allow time further application pleading, granting or if further time is expiration period made before within which the appeаrance pleading or should have filed; been and that impair in this Act shall the discretion of any judgment upon showing Court to set aside of neglect, casualty excusаble just unavoidable or other cause.” 2 The Act No. 49 of 1955 has been mentioned or referred in to a some of which are: Howell v. Van cases, Houten,
number our оf 227 V. 84, 428; Metzler, 782, Ark. 2d 296 S.W. 2d Walden 227 Ark. 301 S.W. v. Pyle 439; Amsler, v. 785, 441; Cummings 227 Ark. 301 2d S.W. v. 972, Galleries, 792; Douglas Lord’s Douglas, Art 227 302 Ark. 2d S.W. v. 1057, 947; 13, 227 Page, Ark. 304 S.W. 2d West Ark. 228 305 2d S.W. v. 336; Stokenbury Stokenbury, 894; Flippin 228 Ark. 307 2d S.W. __ v. V. McCabe, 824; Lambert, 228 Ark. 308 S.W. 2d . Lambert v. Ark........, Sanders,........ Ark. ......, 2d Burton S.W. and 2d 209. S.W. had 1957 the Trial Court the Act of No.
Thus, granted one, power if it had set aside a even default, neglect; (b) excusable either of three causes: just (c) casualty; In the cause. other unavoidable case power con- Court exercised bar Circuit amendatory language tained in the Judge, denying attention motion called default, in 7th Mr. Gibson for that, fact if on plаin- have the a written motion to defendant had filed certainly consti- have examined, tiffs that motion would response, pleading; Gates, tuted that Mr. unnecessary. made the written motion parties easy when Further, see it agreed February 17, 1958, be sub- case to set on certainly ject lulled into reset, be Mr. Gibson was feeling security not be tried before ease would the facts circumstances 17th. Under all until to file his answer in Mr. Gibson’s failure case, this heading either of “excus- 13th under comes just neglect”, all we еvents, able or “other cause”. At refusing say was in error that the Trial cannot refusing render default. to strike Affirmed. George Rose Smith and Johnson
Harris, C. J., JJ., dissent. *4 judge dissenting.
George trial The J., Smith, Rose opinion, finding make a of excusable I read his did as not, ground. neglect; rested a different his decision pleadings, February filed an had two 13 complaint for want of a motion to strike the answer and filed turn verification. On 17 response pleadings, a to motion strike the com- two to request plaint judgment default. The trial plaintiffs, by responding dе- court that held strike, motion to had waived the defendant’s fendant’s delay complaint. agree pleading I do with the not unnecessary reasoning; but dis- trial court’s it seems adopted point, majority have not cuss the since position in lower matter. court’s per- opinion suggests majority two reasons for mitting out First, the defendant to filе his answer of time. parties agreed for the be that when the case to it is said certainly lulled 17, “Mr. Gibson was set on security feeling not into a that the case would be triеd Perhaps th.” fact so, before how is that material? Under the statute the defense must be filed on day, twenty-first aud it makes no difference that coun- may certainty sel know with that cannot tried the case be for Aveeksor even months. trial The date of has complaint. answering By with to do the time for contrary majority intimation to the un- hаve most fortunately ghost very unearthed the statutes repealed by were Act 49 of 1955. only majority’s suggestion,
There left second compliance Mr. that agreeing waived a with Gates the statute might that his clients be examined without the necessity filing of the defendant’s a written motion for plain enough such an examination. It seems de prevented fendant’s oral motion would not alone have judgment, practice our does not rec ognize pleadings, oral v. Bachus, Bachus Ark. 802, (b) S. filing W. 2d Act 53 of 1957 refers to thе appearance pleading, of an undoubtedly which con templates a written instrument. It then, that the follows, finding neglect sole basis of excusable is the fact that Mr. physical said Gates that a written motion for a unnecessary. impossible examination would be I find it to believe either that Mr. Gates intended statement grant an extension, must have been indefinite as filing time, for the of an answer, or that Mr. Gibson excusably could adversary treat the statement of his an assurance that the defendаnt’s answer need be not filed within the time allowed law. regret my disagreement with that I with
It is record majority; we all have understandable aversion *5 judgment holding litigant that a should suffer lawyer’s on account of promptly. failure to file an answer his testimony what- But the defense offered no a default motion plaintiffs’ response ever negleсt that the to show Thus there judgment. will- not I am circumstances these excusable, was be penalized should that the to say ing professional commonplace еxtended attorney opponent. to his courtesy dissent. in this J., J., and C. join Johnson,
Harris, Company Nichols. v. Railroad Pacific Missouri 2d 856 328 S. W. 5-1934 1959. November delivered Opinion Pat W. Mehaffy Eldrеdge, Jr., A. appellant. Jones, John Harris appellee.
George recovered a appellee J. Tbe Smith, Rose judgment $3,500 personal injuries property damage suffered when car struck one of appellant’s trains a railroad in the crossing city Pine Since must be reversed judgment Bluff.