Crouch v. Gilbert

• Decision Date: 09 December 1946
• Docket Number: 4-8023
• Citation: 198 S.W.2d 72,210 Ark. 885
• Parties: Crouch v. Gilbert
• Court: Arkansas Supreme Court

198 S.W.2d 72

210 Ark. 885

Crouch v. Gilbert

No. 4-8023

Supreme Court of Arkansas

December 9, 1946

Appeal from Sebastian Circuit Court, Ft. Smith District; J. Sam Wood, Judge.

Affirmed.

Hardin Barton & Shaw, for appellant.

Chas X. Williams and Paul X. Williams, for appellee.

OPINION

Ed. F McFaddin, Justice.

The judgment of the circuit court is affirmed because of appellants' noncompliance with Rule 9 of this court, which rule provides, in part: "In all civil cases the appellant shall . . . file abstract . . . The abstract or abridgment of the transcript shall set forth the material parts of the pleadings, proceedings, facts and documents . . ., together with other matters from the record as are necessary to an understanding of all questions presented to this Court for decision. . . ."

This is a law case; and the appellants argue that the evidence is not sufficient to sustain the verdict. That assignment of error would have to be preserved in a motion for new trial (see Western Union Tel. Co. v. Sockwell, 91 Ark. 475, 121 S.W. 1046; Van Hoozer v. Hendricks, 143 Ark. 463, 221 S.W. 178). The appellants' abstract is fatally defective, in that it makes no reference to the filing or overruling of any motion for new trial. Wallace v. S. L. I. M. & S. Ry. Co., 83 Ark. 356, 103 S.W. 747, and Draper v. Robinson, 101 Ark. 126, 141 S.W. 762, are cases in point: each of which holds that in a law case the judgment of the trial court will be affirmed if the appellant's abstract fails to show that a motion for new trial was made and overruled.

The history and salutary effect of Rule 9 is set forth in Thompson v. Dierks Lbr. & Coal Co., 208 Ark. 407, 186 S.W.2d 426. The language of Mr. Justice Humphreys in Van Hoozer v. Hendricks, supra, is applicable to the case at bar:

"The abstract presented by appellant fails to show that a motion for a new trial, embracing the assignments of error insisted upon, was filed and overruled by the court. The abstract and brief make no reference whatever to the filing of a motion for a new trial in the lower court. Under rule 9 of this court, a judgment will be affirmed unless appellant's brief shows that a motion for a new trial was filed and overruled. The enforcement of this rule is necessary to the orderly and efficient dispatch of the business of this court. Reeves v. City of Hot Springs, 103 Ark. 430, 147 S.W. 445; Love v. Cowger, 130 Ark. 445, 197 S.W. 853."

Appellee by timely motion, called attention to the deficiency in appellants' abstract, and asked...