Criner v. Criner, s. 4-9192

• Court: Arkansas Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Criner v. Criner, 233 S.W.2d 393, 217 Ark. 722 (Ark. 1950)
• Decision Date: 16 October 1950
• Docket Number: Nos. 4-9192,4-9276,s. 4-9192
• Parties: CRINER et al. v. CRINER et al. MARTIN v. DAVIS et al.

Page 393

233 S.W.2d 393

217 Ark. 722

CRINER et al. v. CRINER et al.

MARTIN v. DAVIS et al.

Nos. 4-9192, 4-9276.

Supreme Court of Arkansas.

Oct. 16, 1950.

Rehearing Denied Nov. 20, 1950.

Harkness & Friedman, Texarkana, Tex., and Quinn & Williams, Texarkana, Surrey E. Gilliam, El Dorado, J. Bruce Streett, Camden, J. V. Spencer and J. V. Spencer, Jr., El Dorado, for appellants Alice Criner et al.

C. M. Martin, Camden, Wilson, Kimpel & Nobles, El Dorado, Keith & Clegg and McKay, McKay & Anderson, all of Magnolia, for appellees John H. Criner et al.

Wilson, Kimpel & Nobles, El Dorado, for appellant Martin.

Surrey E. Gilliam, El Dorado, for appellees H. A. Davis et al.

PER CURIAM.

The question is whether this Court has power to direct retrial of a cause on petition of those who would have appealed had they been able to file the record within the time prescribed by law.

On January 17, 1950, Alice Criner and others filed with the Clerk of this Court a certified copy of a Ouachita Chancery Court decree in an action they had brought against John H. Criner and a list of named defendants. The subject-matter was involved in a decision of this Court rendered January 26, 1948, Criner v. Ritchie, 212 Ark. 815, 208 S.W.2d 447. In the present action there were 93 plaintiffs, all claiming to be heirs of Reason and Susan Criner, who were mentioned in the cited case.

When the decree was filed there was a petition for certiorari, asking that the complete record be brought up. The decree was dated July 28, 1949, but not filed here until five months and twenty days later. In the meantime (January 8, 1950) the official Court Reporter died. He had taken in shorthand all of the testimony. This testimony filled seventeen notebooks with the pages written on each side. A few of the books had been transcribed.

This incomplete bill of exceptions--perhaps less than a third of the entire testimony--was available to the trial Court, and to this Court. Efforts were made to ascertain if some other reporter, or an expert in shorthand writing could decipher the notes, using the transcribed portion as a guide to characters and arbitrary designations the official Reporter--a man of long experience--had adopted. The result of these inquiries was unsatisfactory, hence there was no practicable method of receiving the appeal through extension of time within our rules relating to certiorari.

The only alternative would be to direct a retrial of the cause. This, of course, would result in some advantage and some disadvantage to each side on the single issue of retrial because the testimony of particular witnesses could be anticipated and preparation made for rebuttal. This, however, would not control our disposition of the motion if all other conditions suggested the justice of a different course, and if precedent and practice were not involved, and power to make the order were...