Barkis v. Bell

• Decision Date: 23 November 1964
• Docket Number: No. 5-3365,5-3365
• Citation: 238 Ark. 683,384 S.W.2d 269
• Parties: Bruce BARKIS, Appellant, v. Linda BELL, Appellee.
• Court: Arkansas Supreme Court

Page 269

384 S.W.2d 269

238 Ark. 683

Bruce BARKIS, Appellant, v.Linda BELL, Appellee.

No. 5-3365.

Supreme Court of Arkansas.

Nov. 23, 1964.

Rehearing Denied Dec. 21, 1964.

Wootton, Land & Matthews, Hot Springs, for appellant.

Richard W. Hobbs, Hot Springs, for appellee.

ROBINSON, Justice.

On the 22nd day of April, 1963, appellee herein, Linda Bell, filed suit in the Garland Circuit Court asking for judgment in the sum of $60,000 for personal injuries alleged to have been suffered by her in an automobile accident due to the negligence of appellant herein, Bruce Barkis.Within the statutory time, Barkis filed a motion for additional time to answer.The motion was granted.Before the allotted time expired, Barkis filed a second motion for additional time; again the motion was granted.The time to answer, as extended, expired June 10, 1963.On that day Barkis filed Answers to Interrogatories which had been filed with the Complaint.Two days later, on June 12, the attorney for the plaintiff called the attention of Barkis' attorney to the fact that the record did not show an answer had been filed.The attorney for Barkis immediately, on June 12, filed an answer.It was a general denial.

About six months later, on January 29, 1964, the plaintiff, Linda Bell, filed a motion to strike the answer on the ground that it had not been filed within the time allowed by law.In response to the motion to strike, one of the attorneys for defendant--appellant--filed an affidavit in which he stated: 'On June 10, 1963, in the afternoon, I went to the office of the Circuit Clerk in the Garland County Court House and took with me several files, among these being the file in this case.In the file at that time were originals and a number of copies of both the Interrogatories and and the Answer.I went to the office of the Circuit Clerk in the Garland County Court House and at that time delivered to one of the deputy clerks the original of the Answers to the Interrogatories and also the Answer to the plaintiff's Complaint.These pleadings were taken by the deputy clerk.'

In reply, appellee filed an affidavit of a deputy in the Circuit Clerk's office in which she stated: 'At approximately 4:20 p. m., very close to our closing time, on June 10, 1963, Mr. Richard H. Wootton appeared at the office of the Circuit and Chancery Clerk and he handed me certain Answers to Plaintiff's Interrogatories in this case to be filed.Answers to the Interrogatories was the only thing he handed to me and asked to be filed.He did not hand me any Answer or pleading with respect to this case at that time.'

The trial court granted the motion to strike the answer, and rendered judgment for the plaintiff subject to the right of defendant to contest the amount of damages.

In Walden v. Metzler, 227 Ark. 782, 301 S.W.2d 439, andPyle v. Amsler, 227 Ark. 785, 301 S.W.2d 441, we held it was mandatory that the Circuit Court render judgment for the plaintiff where an answer was not filed in the time prescribed by statute.Subsequently there became effective Act 53 of 1957, Ark.Stats.Ann. § 29-401(Repl.1962), which provides: 'Judgment by default shall be rendered by the Court in any case where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, * * * that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.'

In Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501, andEasley v. Inglis, 233 Ark. 589, 346 S.W.2d 206, we construed the foregoing statute as giving the court authority to set aside a default judgment for any one of three reasons: (1) excusable neglect, (2) unavoidable casualty, (3) other just cause.Although, no doubt, an answer in the case at bar was not filed on June 10, surely the failure of counsel for defendant to file it at that time, in the circumstances shown, is covered by one of the causes for setting aside a judgment enumerated in the foregoing statute.

In addition to counsel's testimony that he took the answer to the court along with the Answers to the Interrogatories to file in the case and thought he had filed it, he is corroborated by the circumstances.In the first place, it is not likely that counsel would have made the trip to the court house to file the Answers to the Interrogatories without taking the Answer to the Complaint along to file it.It was very short--a general denial.Furthermore, when counsel for the defendant was informed two days after the Answer was due that it had not been filed in court, he found copies of it in his file, but the original was not there.Evidently it was lost, and in filing the Answers to the Interrogatories counsel was under the impression that he had also filed the answer to the complaint.In these circumstanceswe believe that it would be within the letter and spirit of Ark.Stats.Ann. § 29-401(Repl. 1962) to set aside the default judgment.

Reversed.

HARRIS, C. J., and WARD, J., dissent.

HARRIS, Chief Justice (dissenting).

I feel that the majority should make clear the ground on which the Circuit Judge is being reversed.To me, the circumstances, related in the majority opinion, do not constitute unavoidable casualty or excusable neglect.If counsel for appellant had been struck by an automobile, suffered a heart attack, or had been prevented from reaching the courthouse by other comparable circumstances, an unavoidable casualty would have occurred.In Interstate Fire Ins. Co. v. Tolbert, 233 Ark. 249, 343 S.W.2d 784, a dissent points out an example of what might constitute excusable neglect.Under the theory adopted by the majority in the present case, the attorney evidently lost the answer to the complaint on the way to the courthouse, and this, in my view, does not come within the meaning of the term 'excusable neglect.'There was nothing to prevent the attorney from handing the answers to interrogatories and answer to the complaint to the clerk separately, for the purpose of making sure that both had been filed; in fact, I daresay that a large number of attorneys follow this practice when filing divers pleadings.Not only that, but there is no requirement that an attorney wait until the last day to file his answer.The court had given an additional fifteen days for the filing of this pleading, and, as mentioned by the majority, the answer was only a general denial, which, of course, would require but a few minutes to prepare.I do not know just what the term 'other just cause' includes--nor do the majority enlighten me.

The statute in question (pertinent portions of which are quoted in the majority opinion) permits the trial court to exercise its discretion in determining whether to set aside any default judgment upon a showing 'of excusable neglect, unavoidable casualty, or other just cause.'By reversing the trial court, the majority is holding that the Circuit Court abused its discretion, and further is holding, in effect, that there is no substantial evidence to support the finding of the trial court.To me, it is incomprehensible that, under the circumstances herein, this court...