Flake v. Hill

• Decision Date: 09 July 1917
• Docket Number: 110
• Citation: 197 S.W. 33,130 Ark. 257
• Parties: FLAKE v. HILL
• Court: Arkansas Supreme Court

197 S.W. 33

130 Ark. 257

FLAKE v. HILL

No. 110

Supreme Court of Arkansas

July 9, 1917

Appeal from Franklin Circuit Court, Ozark District; James Cochran Judge; affirmed.

Judgment affirmed.

Dave Partain, for appellant.

1. Bert Hill was not sworn as a witness.

2. The verdict is clearly excessive and contrary to law and the evidence. 81 Ark. 13.

3. Plaintiff absolutely failed to make out his case, even on his own testimony and not sworn to. He himself violated the contract.

G. O Patterson, for appellee.

The court properly overruled the demurrer and refused appellant's instructions 1, 2 and 3. It properly gave Nos. 1 to 7 on its own motion.

The judgment is right on the evidence, even if appellee was not sworn. No errors are pointed out properly in the abstract of appellant.

OPINION

HUMPHREYS, J.

Appellee instituted this suit against appellants on the 2d day of February, 1915, in the Ozark District of Franklin County, to recover damages on account of the alleged unlawful withholding of certain chattels to which appellee was entitled by virtue of a compromise agreement and order entered in a replevin suit by appellant Flake against appellee.

All of the material allegations in the complaint were denied by appellants.

The cause was submitted to the jury upon the pleadings, evidence adduced, and instructions of the court. A verdict for $ 65 was returned in favor of appellee and judgment rendered in accordance therewith. Proper steps were taken, and an appeal from the judgment has been lodged here.

Appellant insists that the judgment should be reversed--

First. Because appellee was permitted to give testimony without having been sworn.

Second. Because the verdict and judgment was excessive.

Third. Because the verdict was contrary to the evidence and the law.

Rule 9 of this court provides that the appellant shall abstract or abridge the transcript by setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all the questions presented to this court for decision.

No evidence whatever has been abstracted by appellants. The evidence abstracted by appellee in no way assists appellants in maintaining their alleged assignments of error.

In reference to the first assignment of error this court has held that (quoting syllabus 1), "A cause...