Boone v. Holder
Citation | 112 S.W. 1081,87 Ark. 461 |
Parties | BOONE v. HOLDER |
Decision Date | 05 October 1908 |
Court | Supreme Court of Arkansas |
Appeal from Logan Circuit Court; Southern District; Jeptha H. Evans Judge; reversed.
Carmichael Brooks & Powers, for appellant.
The argument of counsel was improper and prejudicial, for which the judgment should be reversed. 61 Ark. 143; 65 id. 481; 80 id. 161.
B. E Boone brought this suit against Albert Holder for alienation of the affections of his wife, Alice Boone. There was a jury trial, and a verdict for the defendant, and plaintiff has appealed.
It is unnecessary to abstract the testimony, except to state that it was sufficient to sustain the allegations of the complaint.
No objections were made to the instructions of the court. The sole ground relied upon for reversal is on account of alleged improper argument of counsel. In his motion for a new trial the plaintiff, Boone, states that R. J. White, counsel for the defendant, was, over his objections, permitted to argue to the jury "that if the mouth of the plaintiff's wife was not closed by the iron laws she would swear that Holder, the defendant, never had sexual intercourse with her; that her husband, the plaintiff, had mistreated her; that he had neglected her and had been too intimate with one of the witnesses for the plaintiff--Doshy Holder." The presiding judge refused to sign the bill of exceptions prepared in accordance with the language set forth in the motion for a new trial as above stated, but corrected it so as to read as follows:
The plaintiff, not being satisfied with the correction made by the judge, procured the bill as originally prepared by him and as set forth in his motion for a new trial to be certified by two bystanders in the manner and form provided by the statutes. No controverting affidavits were filed by the defendant.
This court has held in the case of Smith v. Staten [*] that a bill of exceptions as certified by the bystanders in accordance with the statute, in the absence of controverting affidavits, must be taken as representing the true state of the record. The case for some reason was omitted from our printed reports, but the correctness of the decision has never been questioned, and is. now the settled law in this State. The case is reported in: 16 S.W. 2.
In construing a similar statute, the courts of the State of Kentucky and of Missouri have held that the paper so filed will be treated as containing the correct version of the proceedings unless its truth be controverted by affidavit filed by the opposite side. Norton v. Dorsey, 65 Mo. 376; Koelin v. Rufenact, 6 Ky. L. Rep. 736. Therefore, as far as this court is concerned, the record stands as if the defendant's attorney had stated to the jury that ...
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