Haglin v. Atkinson-Williams Hardware Co.

• Decision Date: 03 January 1910
• Citation: 124 S.W. 518,93 Ark. 85
• Parties: HAGLIN v. ATKINSON-WILLIAMS HARDWARE COMPANY
• Court: Arkansas Supreme Court

124 S.W. 518

93 Ark. 85

HAGLIN v. ATKINSON-WILLIAMS HARDWARE COMPANY

Supreme Court of Arkansas

January 3, 1910

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

Judgment affirmed.

W. A Gillenwaters, for appellant.

Winchester & Martin, for appellee.

OPINION

HART, J.

This is an action by the Atkinson-Williams Hardware Company against Ed Haglin to enforce a lien for material furnished for a building to be erected on defendant's lots in the city of Fort Smith, Sebastian County, Arkansas.

There was a trial before a jury, and a verdict for the plaintiff. The defendant has appealed from the judgment rendered upon the verdict.

Counsel for appellant says that the only question raised by the appeal is: "Can appellee enforce its lien against the property for material that did not go into the building and become a part thereof."

He insists that the court erred in modifying an instruction asked by him on this point. He sets forth in his abstract the instruction asked by him on this point and the modification thereof by the court, but does not set out the other instructions given by the court. He also sets out a portion of the testimony adduced at the trial, which tends to show that a part of the materials furnished were not used in the construction of the building, but does not set out all the testimony or the substance thereof. Nowhere in his brief or abstract is there any reference to a motion for a new trial. The cause was brought and tried in the Sebastian Circuit Court for the Fort Smith District.

Counsel for appellee has not attempted to supply the omissions in the abstract of appellant, but relies solely upon the right to have the judgment of the lower court affirmed for a non-compliance with Rule 9 of this court. His brief was filed on the 3d day of December, 1909, in ample time before the submission of the case for counsel for appellant to have presented to the court his excuse for the alleged omissions in his abstract, had he desired to do so.

Rules of procedure are eminently proper and absolutely necessary to the orderly dispatch of the business before the court. Rule 9 has been adopted for many years, and has been uniformly enforced where no sufficient excuse for not complying with it has been made to the court. The question then is squarely raised: Has Rule 9 been complied with? If it has not according to numerous decisions of the court, extending over a period of many years, the judgment of the lower court must be affirmed.

It is not necessary to discuss the question whether the modification of the instruction complained of, and the testimony abstracted, were sufficient to raise the issue intended to be presented; for the abstract is fatally defective in that it does not show that appellant filed a motion...