Fulbright v. Phipps

• Decision Date: 27 February 1928
• Docket Number: 235
• Citation: 3 S.W.2d 49,176 Ark. 356
• Parties: FULBRIGHT v. PHIPPS
• Court: Arkansas Supreme Court

3 S.W.2d 49

176 Ark. 356

FULBRIGHT v. PHIPPS

No. 235

Supreme Court of Arkansas

February 27, 1928

Appeal from Washington Circuit Court; J. S. Maples, Judge; reversed.

J. W Nance and J. W. Grabiel, for appellant.

H. L Pearson and J. Wythe Walker, for appellee.

OPINION

SMITH, J.

Appellee brought suit against the administratrix of the estate of Jay Fulbright, deceased, upon a demand for alleged unpaid salary amounting to $ 10,000, and offered testimony tending to show that the demand was just, and that he was entitled to receive the amount sued for.

Testimony was offered by the defendant administratrix to the effect that nothing was due appellee, and that the demand upon which he sued had been compromised and settled. Had the verdict been for the defendant we would be required to hold that the testimony was ample to sustain the finding.

After the jury had had the case under consideration for some time a report was made to the court that the jury was unable to agree.

The court required the jury to further consider the case, and a verdict was finally returned for the plaintiff for the sum of $ 5,000, one-half the amount sued for, thus indicating that a compromise verdict had been reached, as the verdict should consistently have been for $ 10,000 or for nothing.

Both parties filed motions for a new trial, and both motions were overruled. Appellee filed a supplementary motion praying the court to render judgment for $ 10,000 notwithstanding the verdict, and that motion was sustained, and judgment was rendered for that amount, and this appeal has been duly prosecuted from that judgment.

We do not review the testimony, for, as has been said, it was sharply conflicting, and is legally sufficient to support a verdict for $ 10,000 in favor of the plaintiff or one in favor of the defendant. There appears to be no assignment of error requiring discussion except the action of the court in rendering judgment for $ 10,000 notwithstanding the jury had returned a verdict in favor of the plaintiff for only $ 5,000.

The case of Jackson v. Carter, 169 Ark. 1154, 278 S.W. 32, was a suit upon three notes which had been executed in payment of the purchase price of an automobile. The defendant denied liability upon the notes on the ground that the automobile had been stolen, and there was a verdict and judgment in his favor. Upon the appeal to this court it was held that the defendant had failed to prove that the automobile had been stolen, and that the proof was insufficient to show that the consideration for the notes had failed. It was therefore held that, as the undisputed testimony showed that plaintiff was entitled to a judgment for the amount of the notes, judgment should be rendered here for the plaintiff, notwithstanding a verdict had been returned in favor of the defendant, and this was done. It was there said, however:

"But § 6271 of Crawford & Moses' Digest provides 'When a trial by a jury has been had, judgment must be entered by the clerk in conformity with the verdict, unless it is special, or the court orders the case to be reserved for future argument or consideration.' And § 6273 provides: 'Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict has been found against such party.' The facts of this record do not bring the case within either of the above sections of our statute. The verdict was not special, the case was not reserved by the court for future judgment or consideration, and there was no statement in the pleadings to justify the court in entering a judgment in favor of the appellant. Therefore the appellant was not entitled to a judgment non obstante veredicto. 'The motion in arrest of judgment in civil causes is unknown to our system of practice, and, where it does obtain, can be maintained only for a defect upon the face of the record, of which the evidence constitutes no part' (Citing cases)." It is apparent that neither section of the statute quoted in the case cited above is applicable to the facts in this case. Here the answer denied any liability, and the testimony on behalf of the defendant would have sustained that finding. The plaintiff was therefore not entitled to a judgment under the pleadings nor under the undisputed proof. Ryan v....