Clark v. Collins

• Decision Date: 26 April 1948
• Docket Number: 4-8527
• Parties: Clark v. Collins
• Court: Arkansas Supreme Court

210 S.W.2d 505

213 Ark. 386

Clark v. Collins

No. 4-8527

Supreme Court of Arkansas

April 26, 1948

Appeal from Clay Circuit Court, Western District; Charles W. Light Judge.

Reversed.

Bryan McCallen and Schoonover & Steimel, for appellant.

E L. Mizell and E. L. Hollaway, for appellee.

OPINION

Minor W. Millwee, Justice.

Appellee, Dick Collins, was plaintiff in circuit court in an action for damages for breach of a lease contract executed on May 11, 1946, whereby appellant, O. C. Clark, leased the Midway Cafe in Corning, Arkansas, to appellee for one year beginning October 11, 1946, at a rental of $ 40 per month. A. R. Bloom and Martha Bloom were also made party defendants.

In the complaint filed on November 9, 1946, appellee alleged that he tendered the first monthly rental payment due under the lease and demanded possession of the premises, but that the Blooms were in possession as tenants of appellant and refused to deliver possession or to account to appellee for rents; that the premises were of the reasonable rental value of $ 75 per month and appellee was, therefore, damaged in the sum of $ 420 by reason of the breach of the lease agreement. Appellee also alleged that he had suffered further damages by reason of having purchased furniture and equipment in the sum of $ 1,000 to be used in operation of the cafe, which he was unable to use by reason of the breach of the lease agreement. Judgment was prayed for damages in the total sum of $ 1,420 against all the defendants.

Appellant, O. C. Clark, made default at the March, 1947, term of court and the case was passed to the October, 1947, term for the purpose of fixing the amount of damages. On October 28, 1947, appellant filed a motion for leave to file an answer to which appellee filed a response on the same date. After hearing the testimony presented by both parties, the trial court denied the motion. Appellant then filed a motion which reads as follows:

"Comes O. C. Clark and for his motion herein, states:

"That this defendant was denied permission by the court to file answer herein and default was rendered against him, and jury empanelled for the purpose of assessing the damages to plaintiff.

"That the defendant is entitled to cross-examine plaintiff's witnesses on the question of damages and to introduce proof herein before the jury for the purpose of minimizing the damages of the plaintiff.

"Wherefore, defendant prays that he be permitted and granted opportunity to cross-examine the witnesses of the plaintiff and to introduce proof to minimize the damages of said plaintiff before the jury herein."

This motion was overruled by the trial court and appellant duly saved his exceptions. After hearing the testimony offered by appellee on the question of the amount of the damages, the jury returned a verdict in favor of appellee and against the appellant, O. C. Clark, in the sum of $ 720, and judgment was rendered accordingly.

For reversal of the judgment, appellant contends that the trial court erred in overruling his motion for permission to cross-examine appellee's witnesses and introduce proof before the jury in mitigation of damages. There is no bill of exceptions and the final judgment makes no reference to the filing of the motion, or the action of the court thereon. On this state of the record appellee insists that the alleged error is not subject to review on appeal. However, this court has repeatedly held that a bill of exceptions is unnecessary where the error sought to be reviewed appears in the record proper. Jones v. Jackson, 86 Ark. 191, 110 S.W. 215; Sizer v. Midland Valley R. R. Co., 141 Ark. 369, 217 S.W. 6; Buchanan v. Halpin, 176 Ark. 822, 4 S.W.2d 510. The pleadings and record entries are a part of the record proper and need not be set forth in the bill of exceptions. London v. Hutchens, 80 Ark. 410, 97 S.W. 443; Hanson v. Anderson, 91 Ark. 443, 121 S.W. 736; Morrison v. St. Louis & San Francisco Railroad Co., 87 Ark. 424, 112 S.W. 975; Stevenson's Supreme Court Procedure, p. 5. The motion filed by appellant and the formal order entered by the court overruling same constitute a part of the record proper. Since the alleged error complained of appears therein, it is subject to review on appeal in the absence of a bill of exceptions.

In the early cases of Thompson v. Haislip, 14 Ark 220, and Mizzell, et al. v. McDonald, et al., 25 Ark. 38, this court laid down the rule that in a hearing to determine the amount of damages after default, a...