140 Ark. 218 | Ark. | 1919
This action was brought in the Franklin Circuit Court by the appellant against the appellee to recover damages which the appellant alleged resulted to the widow and next of kin and to the estate of E. A: Page, deceased, by the negligence of the appellee.
There was a jury trial, a verdict rendered and judgment entered in favor of the appellee as of September 27, 1918, and this appeal.
The record concerning the filing of a motion for a new trial contains the following recital:
“On this September 27,1918, the plaintiff being present by his attorney, Jo Johnson, and the defendant being present by its attorneys, J. H. Evans and J. D. Benson, and plaintiff files motion for new trial in the action, and the court, being well and sufficiently advised, doth overrule said motion for a new trial, and the plaintiff duly excepts and prays an appeal to the Supreme Court, which is granted and ninety days given to file. hill of exceptions.”
At a succeeding term of the court, towit, on the 7th of February, 1919, the appellee, defendant below, filed a motion to strike from files of the court the motion for new trial, alleging that same had not been filed at the September term nor after that term had expired in the manner prescribed by law. The appellee further moved the court to correct the record entry made at the September term of the court which recited that a .motion for a new trial was filed, that it was overruled, and that the plaintiff below, appellant here, saved his exceptions to the overruling of said motion.
The alleged ground of the motion to strike and to correct the record nunc pro tunc was “that no motion for new trial was filed, considered or overruled by the court in term time and no exceptions thereto were saved by the appellant.”
The appellant was duly notified of the motion to strike and to correct the record nunc pro tunc.
On the hearing of this motion the appellee introduced the clerk, who testified to the recitals of the record as above set forth and stated that the record was entered the last day of the September term of court and that the motion for new trial was not filed on that day but some time after that; that the motion for new trial was sent to him through the mail and was marked filed as of the last day of the September term, 1918; it was a month and perhaps longer after that term of the court before witness received and filed the motion. Mr. Johnson, attorney for the appellant, prepared the precedent for the record recital above set forth and called witness’ attention to the fact that the court record showed the filing of the motion for new trial.
J. H. Evans, one of the attorneys for appellee, testified that Mr. Johnson, who was the attorney for the appellant, did not file the motion for a new trial during the September, 1918, term of the court; that he prepared a precedent for the entry showing that such motion was filed, overruled and exceptions saved, but none of that happened at the term of court; that he said he would prepare a motion later and would send witness a copy of it and witness never- knew that he claimed to have filed a motion until he received a bill of exceptions; that the record entry showing that a motion for n'ew trial was filed on September 27, 1918, was untrue. Witness knew that Mr. Johnson did not file any motion and that the court did not pass on it. Witness was asked by Mr. Johnson, the attorney for the appellant, the following question:
‘ ‘ Q. l)on’t you recall that while you and Mr. Benson were still sitting over there at the time the court from the bench asked me if I desired to make any further entries at that time and it was at that time that the court asked, in substance, if I wanted to take an entry for a new trial at that time and that the entry was made ? ’ ’
Witness answered: “Might have occurred, but I have no recollection of it, Mr. Johnson.”
Witness J. D. Benson testified that he was one of the attorneys for the appellee; that the case was concluded on the afternoon of the last day of court; that if there was any motion for new trial filed at that time witness did know it.
Jo Johnson, attorney for the appellant, testified in part as follows: “The minutes of the judge’s docket read as follows: ‘ 9-27 plaintiff files motion for new trial, motion overruled and plaintiff excepts and prays an appeal to the Supreme Court, prayer granted and ninety days given to file bill of exceptions.’
‘‘ The minutes of the judge’s docket state the truth as to the entries on the docket, and these entries were made in open court before the judge had left the bench and while I was in open court, and also both of the counsel for the defendant were still there in open court, and at the time I think they understood it and knew it. I never had any thought to the contrary until I have heard statements from the counsel for the defendants. The entry by His Honor on the bench, the regular judge as presiding now, Judge Jas. Cochran, called my attention to it, or probably I would have missed mentioning it right away because the court was about ready to adjourn when the jury returned the verdict. That was the last important entry. I then said in reply to the court: ‘Yes, I would like to have an entry of the filing of a motion for a new trial.’ ‘I will not have anything to argue before the court.’ I asked Judge Evans about including the entry of plaintiff’s motion for new trial in the precedent for the judgment. He objected. There was a precedent prepared. It was left with the clerk.. That precedent was entered. On the motion for new trial in entry judgment in favor of the defendant, I had no intention to say to Judge Evans that I would furnish him a copy of the motion. I never knew until today that Judge Evans expected a copy of that motion for new trial. As to the statement of the clerk that I said I would prepare that motion for a new trial before I left town, I did not understand that I made that sort of a statement. I knew I was not going to write it. I think the Judge knew that I was going to leave. The judge knew that I had not written the motion for a new trial. As to when the motion for a new trial was actually written, under protest and objection, I state I think I wrote it right away after I got to my office. I do not know the date it reached the hands of the clerk. I don’t know whether I sent it direct to the clerk. I did not actually file this motion until some time after that. I prepared the motion for new trial after the court adjourned. I wrote on the motion for a new trial the endorsements: ‘Filed September 27, 1918, Clerk,’ leaving the place blank. I did that because the court said or asked or else I had said between the time Your Honor made that entry on the docket showing the truth of the transaction in the court and signed the motion for a new trial, it would be all right to file as of the date on which Your Honor made the docket entries.”
The above constitutes the substance of all the testimony that is material on the motion to strike and to correct the record by nunc pro time entry.
The court found that the minutes were entered on the docket by the court as set forth above; that “no motion for new trial was filed by the plaintiff during the sitting of the court nor until some time after the court adjourned, and therefore the court finds that the record does not speak the truth when it says that said motion for new trial was filed, overruled and exceptions saved.”
The court thereupon entered an order amending the record so as to show that the motion for new trial was not filed until after the court had adjourned. The appellee duly excepted to this ruling.
The law on this subject is.well settled by our own and the authorities generally. In King & Houston v. State Bank, 9 Ark. 185, we-said: “The authority of the court, in such cases, does not arise from the statute of Amendments and Jeofails, etc., but from the high equity powers of the court, which enable it to amend in whatever may be necessary to make the record speak the truth, whenever the ends of justice require such amendment. ’ ’
Other cases to the same effect in our own and other courts are: Sweeney v. State, 35 Ark. 588; Bobo v. State, 40 Ark. 324; Ward v. Magness, 75 Ark. 12; Goddard v. State, 78 Ark. 228; Liddell v. Bodenheimer, 78 Ark. 364; Roberts & Schaeffer Co. v. Jones, 82 Ark. 188; Schofield v. Rankin, 86 Ark. 90; Lower v. Hart, 93 Ark. 548-558; Hydrick v. State, 103 Ark. 4; Wright, Petitioner, 134 U. S. 136-141; Waters v. Engle, 53 Md. 179; Greff v. Fickey, 30 Md. 78; Gribb v. State, 45 S. E. (Ga.), 396; Balch v. Shaw, 7 Cush. 282-5; Christensen v. Hodges, 84 Pac. 530; Strickland v. Strickland, 95 N. C. 471.
Counsel for appellant concede that no motion for new trial was filed in vacation in compliance with the terms of the statute, supra.
The appellee moved to make the amended complaint more definite and certain by striking out the words in the above, towit: “By reason of defendant’s negligence in looking after the safety and sufficiency of said entry way and roof, in ways unknown to plaintiff.” The record showing the court’s ruling recites: 1 ‘ The court sustains said motion and strikes said words from the paragraph'of the complaint, the plaintiff duly excepts to this judgment of the court.”
Conceding, without deciding, that the ruling of the court is properly challenged by the record before us, nevertheless there' was no error prejudicial to appellant in striking out the allegation set forth above.
The amended complaint alleged that Page was injured by the caving in of the roof to the entry way of the room where Page was working so that a large rock fell on Page.
It further alleged that the injury was caused by the negligence of appellant in failing to furnish Page with a safe roof, to inspect it, to remove said rock and to prop it sufficiently.
After these general and specific allegations of negligence, it is manifest that no prejudice could have resulted to appellant in striking out the clause set forth. It was in substance but a mere repetition of the allegations that had gone before. Under the allegation that the defendant “had carelessly and negligently failed to furnish for the use of said Page an entry way with a safe roof, ’ ’ the appellant could have adduced all the evidence that it was possible to adduce under the clause which the court struck out.
There are no errors prejudicial to appellant appearing upon the face of the record proper or judgment roll, and the judgment must therefore be affirmed.