Fitzwater v. Harris

• Decision Date: 09 November 1959
• Docket Number: No. 5-1929,5-1929
• Citation: 231 Ark. 173,328 S.W.2d 501
• Parties: Bessie Franz Scott FITZWATER et al., Appellants, v. William HARRIS, Appellee.
• Court: Arkansas Supreme Court

Page 501

328 S.W.2d 501

231 Ark. 173

Bessie Franz Scott FITZWATER et al., Appellants, v.William HARRIS, Appellee.

No. 5-1929.

Supreme Court of Arkansas.

Nov. 9, 1959.

Orion E. Gates, Monticello, for appellants.

John F. Gibson, Dermott, for appellee.

McFADDIN, Justice.

This appeal necessitates a study of ActNo. 53 of 1957.The question posed is the correctness of the Circuit Court ruling which refused the plaintiffs a default against the defendant because of his failure to file answer within twenty-one days after service of summons.

Here is the chronological order of events:

(a) On January 22, 1958appellants, as plaintiffs, filed action in the Drew Circuit Court against the appellee, William Harris.The complaint sought damages for plaintiffs because of an alleged traffic mishap.

(b) Summons was served on defendant, Harris, in Chicot County on January 22, 1958; and on January 23rd Harris' attorney, Mr. Gibson, wrote the Drew Circuit Clerk and obtained a copy of the complaint.

(c) On February 7, 1958 the Circuit Judge was in Drew County for the purpose of setting cases for the ensuing term of the Circuit Court which would convene on February 17, 1958(the third Monday in February, as fixed by § 22-310, Ark.Stats.).

(d) Mr. Gates, for the plaintiffs, and Mr. Gibson, for the defendant, were both present before Circuit Judge Golden on February 7th; and Judge Golden dictated the following into the record as his recollection of what transpired on that occasion:

'On February 7the Court set the docket, including this case, and on that date the following notation was made by the Court: 'Set for 2/17/58, to be reset', and as I recall what transpired on that date Mr. Gibson stated that he wished to file a motion for an order to have permission to have the plaintiffs examined by some physician and that Mr. Gates immediately responded that that wasn't necessary, that he would submit them to an examination at any reasonable time or place.That was a verbal motion.'

(e) On February 13th defendant filed his answer, which was twenty-two days after the day of the service of summons.

(f) On February 17th plaintiffs filed their motion to strike the answer and for default, since the answer was filed one day too late.

(g)The Circuit Court denied the motion to strike and the motion for default; and the correctness of that ruling is the sole issue ¹ on this appeal.

In the briefs and in the oral argument before this Court, appellants cite ActNo. 49 of 1955 and insist that under the law ² it was mandatory on the Circuit Court to render a default against the defendant since he had failed to file an answer within twenty-one days after service; and appellants cite, inter alia, Walden v. Metzler, 227 Ark. 782, 301 S.W.2d 439;andPyle v. Amsler, 227 Ark. 785, 301 S.W.2d 441.These cases were decided under ActNo. 49 of 1955 and hold exactly what the appellants say: but appellants have apparently failed to attach the proper importance to ActNo. 53 of 1957, which amended the said ActNo. 49 of 1955.The germane portion of ActNo. 49 reads:

'Judgment by default shall be rendered by the Court in any case where the defense has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing a defense, if application for granting further time is made before expiration of the period within which the defense should have been filed.'

The quoted language of the above Act was amended by ActNo. 53 of 1957; and below we emphasize the amendatory language for convenient information:

'Judgment by default shall be rendered by the Court in any case where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing an appearance or pleading, if application for granting further time is made before expiration of the period within which the appearance or pleading should have been filed; and that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.'

Thus, by the ActNo. 53 of 1957the Trial Court had power to set aside a default, even if it had granted one, for either of three causes: (a) excusable neglect; (b) unavoidable casualty; or (c) other just cause.In the case at barthe Circuit Court exercised the power contained in the amendatory language because the Circuit Judge, in denying the motion for default, called attention to the fact that, if on February7th Mr. Gibson for the defendant had filed a written motion to have the plaintiffs examined, that motion would have certainly constituted a pleading; but that Mr. Gates, by his response, made the written motion unnecessary.

Further, it is easy to see that when the parties agreed for the case to be set on February 17, 1958, subject to be reset, Mr. Gibson was certainly lulled into a feeling of security that the case would not be tried before February 17th.Under all the facts and circumstances in this case, Mr. Gibson's failure to file his answer until February 13th comes either under the heading of 'excusable neglect', or 'other just cause'.At all events, we cannot say that the Trial Court was in error in refusing to strike the answer and in refusing to render a default.

Affirmed.

HARRIS, C. J., and GEORGE ROSE SMITH and JOHNSON, JJ., dissent.

GEORGE ROSE SMITH, Justice (dissenting).

The trial judge did not, as I read his opinion, make a finding of excusable neglect; his decision rested on a different ground.On February 13the defendant had filed two pleadings, an answer and a motion to strike the complaint for want of verification.On February 17the plaintiffs in turn filed two pleadings, a response to the motion to strike the complaint and a request for judgment by default.The trial court held that the plaintiffs, by responding to the defendant's motion to strike, had waived the defendant's delay in pleading to the complaint.I do not agree with the trial court's reasoning; but it seems unnecessary to discuss the point, since the majority have not adopted the lower cou...