Driver v. Treadway

• Decision Date: 09 January 1928
• Docket Number: 104
• Parties: DRIVER v. TREADWAY
• Court: Arkansas Supreme Court

1 S.W.2d 84

175 Ark. 1028

DRIVER v. TREADWAY

No. 104

Supreme Court of Arkansas

January 9, 1928

Appeal from Mississippi Circuit Court, Chickasawba District; W. W Bandy, Judge; reversed.

Case reversed, and remanded.

J T. Coston, for appellant.

L Neill Reed, for appellee.

OPINION

MEHAFFY, J.

The appellant, J. L. Driver, brought suit in the circuit court of Mississippi County for $ 500 for breach of contract. The jury returned a verdict for $ 1 on January 19, 1927. Court was in session on the 20th and 21st days of January, and then adjourned until the 24th day of January, and on that day January 24, the appellant, Driver, filed his motion for a new trial.

Treadway thereupon filed a motion to strike the motion for a new trial from the files, on the ground that it was not filed within three days after the verdict was rendered. The court, in sustaining Treadway's motion, stated: "The plaintiff was entitled to a verdict for $ 500, and the verdict ought to be set aside. But the plaintiff did not file his motion for a new trial within three days after the verdict was rendered, and I cannot consider it." And the judgment striking the motion for a new trial from the record recites: "The court is without jurisdiction to entertain plaintiff's motion for a new trial or set aside said verdict, for the reason that said motion was not filed within three days from the date of the rendition of the verdict."

The only question presented by this appeal is whether the court could act on the motion for a new trial which was filed more than three days after the verdict was rendered.

The statute reads in part as follows:

"The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause mentioned in subdivision 7 of § 1311, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented." Section 1314, Crawford & Moses' Digest.

The remainder of the section of the Digest provides for the manner of filing motions when the verdict is rendered at or about the closing of the term of court, and authorizes the losing party to present his motion to the judge within 30 days from the date of the verdict or decision. That part of the section, however, is not involved in this appeal.

Appellant contends that the court had jurisdiction and had the right to grant appellant's motion, although the motion was not filed until more than three days after the rendition of the verdict. The court had the power to set aside the verdict at any time during the term, and a majority of the judges are of opinion, since the lower court announced that plaintiff was entitled to a verdict of $ 500 and that the verdict ought to be set aside, that it was the duty of the court to treat the motion for a new trial as a motion to set aside the judgment, and that he should have heard the motion, and if, in his judgment, the verdict was not sustained by the evidence, he should have set the verdict aside and granted the plaintiff another trial.

Mr. Justice HUMPHREYS, Mr. Justice KIRBY and the writer do not agree to this, their opinion being that the statute fixing the time in which motions for a new trial shall be filed is mandatory and that the phrase, "unless unavoidably prevented," authorizes the court to extend the time or permit the motion to be filed after the three days if there is a showing that the person filing the motion was unavoidably prevented from filing it within the three days.

The prior statute on the subject of motions for new trials reads as follows:

"All motions for new trials and in arrest of judgment shall be made within four days after the trial, if the term of court shall so long continue, and if not, then before the end of the term, and every such motion shall be accompanied by a written specification of the reasons upon which it was founded." English's Digest, chapter 126, § 131.

In construing that section, this court said:

"More than four days after verdict for the defendant, the plaintiffs below, who are the plaintiffs in error, filed a motion for a new trial, which was stricken from the files on motion of the defendant, and, because the court considered that under the 123d section of chapter 126 of English's Digest, it had no discretion to entertain the motion. If the circuit court had simply refused, in the exercise of its discretion, to allow the motion for a new trial to remain on file, because filed too late, this court would be slow to interfere with the discretion exercised; but when, as shown by the bill of exceptions, the action of the court was not discretionary, but in obedience to a statute it considered imperative, this court may, if it...