Arkansas State Highway Commission v. Brown

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN
• Citation: Arkansas State Highway Commission v. Brown, 410 S.W.2d 737, 241 Ark. 862 (Ark. 1967)
• Decision Date: 30 January 1967
• Docket Number: No. 5--4038,5--4038
• Parties: ARKANSAS STATE HIGHWAY COMM., Appellant, v. Clarence BROWN et ux., Appellees.

Page 737

410 S.W.2d 737

241 Ark. 862

ARKANSAS STATE HIGHWAY COMM., Appellant, v. Clarence BROWN et ux., Appellees.

No. 5--4038.

Supreme Court of Arkansas.

Jan. 30, 1967.

George O. Green and Don Langston, Little Rock, for appellant.

Ralph W. Robinson and Floyd G. Rogers, Van Buren, for appellees.

FOGLEMAN, Justice.

Appellant filed its complaint and declaration of taking condemning 24.83 acres belonging to appellees, Clarence and Lorena Brown, in the Circuit Court of Crawford County on May 25, 1965. These lands, except for oil and gas interests that would not interfere with the surface use for highway purposes, were taken outright, along with temporary construction easements over 8.2 acres for construction of a controlled access, Interstate Highway #40. Trial to a jury resulted in an award of $40,000.00 to the landowners, from which this appeal is taken.

Appellant finds itself in the unfortunate predicament of being unable to file a complete court reporter's transcript of the testimony and proceedings in the case because of a breakdown in the reporter's recording machine. This was discovered after the verdict and judgment and the giving of notice of appeal. Appellant then availed itself of the remedy this court has held to be applicable in these circumstances--the filing of a statement of the evidence or proceedings from the best available means, which in this case was the recollections of counsel for appellant, aided by notes taken by him during the trial. See Ark.Stat.Ann. § 27--2127.11 (Repl. 1962); Tomlin v. Reynolds Mining Corp., 231 Ark. 393, 329 S.W.2d 552; Mowrey v. Coleman, 224 Ark. 979, 277 S.W.2d 481. While this statute requires that appellee, in such cases, serve objections or propose amendments within ten days, appellees did not file their response until twenty days had elapsed.

Thereafter, the court heard the parties, caused witnesses who testified on behalf of appellees to be brought in, sworn and examined as to the testimony and ordered that the portion of the record offered by appellant showing the testimony of appellant's witnesses and the statements of appellees' witnesses be approved and incorporated into the record. Prior to the making of this order, appellant moved to strike the objections and proposed amendments filed by appellees, contending that by failure to respond within the period set out by statute, appellees had waived their right to object and that the appellant's statement as to the testimony became the record thereof, insofar as this appeal is concerned. When this motion was denied and the court's order settling the record made, appellant moved for a new trial on the premise that the inability of appellant to have a complete stenographic report of the evidence and proceeding constituted accident or suprise which ordinary prudence could not have guarded against, a statutory ground for new trial. This motion was also denied and appeal was also taken from the order overruling that motion. Appellant now contends that the trial court committed error in denying its motions.

A review of our statutes and the decisions construing the Federal Rules of Civil Procedure, from which our statutes on the subject were adopted, along with the decisions above cited, clearly shows that the trial court has jurisdiction, as well as the responsibility, to settle the record on appeal. Ark.Stat.Ann. § 27--2127.11 requires that any such statement filed by appellant, with objections or proposed amendments, be submitted to the trial court for settlement and approval, and that the same as settled and approved by the trial judge be included in the record on appeal.

While Ark.Stat.Ann. § 27--2129.1 (Repl.1962) provides that it is not necessary for the record on appeal to be approval by the trial court, it requires that any difference that arises as to whether the record discloses what occurred in the trial court be submitted to and settled by the trial court which is authorized to direct that any omission or misstatement be corrected. The cited sections were adopted from former Rule 75(h) and (n) of the Federal Rules of Civil Procedure (now 75(c) and (d)). Under these rules, it has been held that such a statement not accurately reflecting the truth and not submitted to the trial judge is for the attention, correction and disposition of the trial court. Miller v. Miller, 72 App.D.C. 348, 114 F.2d 596 (1940).

If the judge cannot remember the evidence, he may call witnesses who gave or heard the testimony. Citizens National Trust and Savings Bank of Los Angeles v. Welch, 119 F.2d 717 (9th Cir. 1941). There is no error in the trial judge denying a motion to amend the record where he has no recollection of the matter sought to be inserted. Cox v. United States, 284 F.2d 704 (8th Cir. 1960), cert. denied, 365 U.S. 863, 81 S.Ct. 831, 5 L.Ed.2d 825; Cox v. General Elec. Co., 302 F.2d 389 (6th Cir. 1962). The finding of the trial judge is conclusive unless clearly unreasonable, in the absence of any charge of deliberate and intentional falsification of the record. Gunther v. E. I. Du Pont de Nemours & Co., 255 F.2d 710 (4th Cir. 1958); Belt v. Holton, 90 U.S. App.D.C. 148, 197 F.2d 579 (1952). It is only where the adverse party files no objections, or where no specific fault is pointed out by the trial...