Arkansas State Highway Commission v. Clay

• Court: Arkansas Supreme Court
• Writing for the Court: WARD
• Citation: Arkansas State Highway Commission v. Clay, 408 S.W.2d 600, 241 Ark. 501 (Ark. 1966)
• Decision Date: 28 November 1966
• Docket Number: No. 5--4037,5--4037
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. James Henry CLAY et ux., Appellees.

Page 600

408 S.W.2d 600

241 Ark. 501

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. James Henry CLAY et ux., Appellees.

No. 5--4037.

Supreme Court of Arkansas.

Nov. 28, 1966.

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

Robinson & Rogers and N. D. Edwards, Van Buren, for appellees.

WARD, Justice.

This is an eminent domain proceeding.

On May 25, 1965 the Arkansas State Highway Commission (appellant) filed suit to condemn several lots and parts of lots owned by James Henry Clay and his wife (appellees) for use in construction of Interstate Highway No. 40. A jury verdict awarded appellees the sum of $22,500.

When appellant attempted to prosecute an appeal to this Court is learned that, due to a defect in the reporter's recording machine, all of the testimony and proceedings had not been recorded and that a complete record could not be furnished. Thereupon appellant prepared and served on appellees its statement of evidence and proceedings in accordance with the provisions of Ark. Stat. Ann. § 27--2127.11 (Repl. 1962). Then appellees filed objections and amendments to appellant's statement (in accord with the same statute) over the objections of appellant.

One June 9, 1966 the trial court approved the statements of both parties, and on the same day appellant filed a motion for a new trial on the ground that the failure to obtain a complete record was the result of the unavoidable situation above mentioned. The motion was denied, and this appeal follows.

One. We find no merit in appellant's contention the trial court erred in refusing to grant a new trial. Appellant's remedy was to prepare its 'statement of the evidence or proceedings * * *' by the method provided in said section 27--2127.11. This section has previously been construed by this Court (against the contention of appellant) in Mowrey v. Coleman, 224 Ark. 979, 277 S.W.2d 481, and Tomlin v. Reynolds Mining Corp. 231 Ark. 393, 329 S.W.2d 552.

Two. As previously mentioned, appellant prepared a statement and presented it to the trial court for approval pursuant to the statute above mentioned. A copy of this statement was served on appellees in due time. It appears, however, that appellee failed to serve its objections or proposed amendments within the time (ten days) required by the same statute. However, the trial court approved appellees' statement. We think the court was in error, but we also think it was harmless error. It must be kept in mind (as was referred to in the Mowrey case, supra) that the jury had already reached its decision before it was learned that a complete transcript of the testimony and proceedings could not be obtained. They heard and considered all the testimony. Therefore the burden was on appellant to show error or lack of substantial evidence to support the verdict. As pointed out hereafter, appellant has not met that burden.

Three. We do not agree with the contention of appellant that the trial court should have declared a mistrial.

During the trial appellees' witnesses made references to damages caused to lots outside of the taking....