C. A. Rees & Company v. Pace

• Decision Date: 15 January 1923
• Docket Number: 93
• Citation: 246 S.W. 491,156 Ark. 473
• Parties: C. A. REES & COMPANY v. PACE
• Court: Arkansas Supreme Court

246 S.W. 491

156 Ark. 473

C. A. REES & COMPANY v. PACE

No. 93

Supreme Court of Arkansas

January 15, 1923

Appeal from Little River Chancery Court; James D. Shaver Chancellor; affirmed.

Decree affirmed.

A D. DuLaney, for appellant.

Johnson & Shaver, for appellee.

OPINION

HUMPHREYS, J.

Appellee instituted this suit against appellants in the chancery court of Little River County to recover an alleged balance of $ 5,378.06 for work done by him as a subcontractor of appellants in Road Improvement District No. 7, in said county. Judgment was prayed against appellants, and an equitable garnishment against Road District No. 7.

Appellants filed an answer denying the allegations of the bill.

The cause was submitted to the court upon the pleadings, exhibits thereto, and the depositions of H. K. Pace, Luther Carson, R R. Cox, Joe Jackson, and Fred Latham, taken orally before the court. The aforesaid testimony, taken ore tenus before the court, was not brought into the record by a bill of exceptions approved by the court or agreed to by the parties or their attorneys, nor was it made a part of the record by having it taken down in writing in open court and by permission filed with the papers in the case, nor by having it reduced to writing and embodied as a recital in the decree. One of said methods should have been adopted, or else the method provided by the Practice Act of 1915 (Crawford & Moses' Digest, § 1269) should have been followed, in order to bring the evidence before the Supreme Court for consideration de novo. Fletcher v. Simpson, 144 Ark. 436, 222 S.W. 710; Desha Road Improvement District No. 2 v. Stroud, 153 Ark. 587, 241 S.W. 882. The method adopted was to insert the purported testimony in the transcript, under a certificate of identification from a stenographer not designated or appointed by the court at the beginning of the trial to take, transcribe, and file the evidence. This was not sufficient to bring the oral testimony into the record. Blackford v. Gibson, 144 Ark. 240, 222 S.W. 367.

Appellee insists that this court cannot determine the issues upon their merits, because the testimony has not been properly preserved and incorporated in the record. The contention of appellee is correct, and must be sustained under the rules of practice announced in the cases cited above.

Appellants contend, however, that reversible error appearing upon the face of the record was committed by the trial court in overruling their motion to transfer the cause to the circuit court, and to require appellee to file a bond under § 4906 of Crawford & Moses' Digest.

Under the allegations of the bill, Cobb and Junkins, operating as partners under the firm name of Rees & Company, were nonresidents, insolvent, and without any property in the State, except an amount due them by said Road District No. 7 a public corporation, for constructing a road; that said Rees & Company were the principal...