Hayes v. Rickett, 5--6211

• Decision Date: 02 April 1973
• Docket Number: No. 5--6211,5--6211
• Parties: Dr. Harry HAYES, Petitioner, v. Richard W. RICKETT, Jr., Respondent.
• Court: Arkansas Supreme Court

Page 419

492 S.W.2d 419

254 Ark. 179

Dr. Harry HAYES, Petitioner, v. Richard W. RICKETT, Jr., Respondent.

No. 5--6211.

Supreme Court of Arkansas.

April 2, 1973.

Smith, Williams, Friday, Eldridge & Clark by W. A. Eldridge, Jr., and J. D. Watson, Little Rock, for petitioner.

Tom Gentry, Little Rock, for respondent.

BYRD, Justice.

In this petition for writ of certiorari, Dr. Harry Hayes contends that the trial court exceeded its jurisdiction in permitting the cause to be tried a second time when the respondent Richard W. Rickett, Jr. relinquished the right to take Dr. Stuckey's pretrial deposition pursuant to our opinion in Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971), and in overruling his motion of October 10, 1972, to declare the judgment final.

The record shows that following our remand on the prior appeal, Rickett did not take a discovery deposition from Dr. Stuckey, petitioner's expert witness as to the practice of physicians in treating persons having Rickett's medical problems. The second trial lasted nine days with the jury again returning a verdict for Dr. Hayes on July 24, 1972. A judgment on the jury verdict was rendered on July 26th. On August 7th, Rickett filed a request for an extension of time to file a motion for new trial. This request for an extension of time contains a certificate that a copy thereof was served upon petitioner by placing a copy thereof in the United States mail properly addressed to his attorneys of record. However, since the request was granted on the same date by a special judge, who had not heard the case, we assume for purposes of this opinion that the extension of the time to October 15th to file a motion for new trial was made ex parte and without prior notice to petitioner. October 10th petitioner filed a motion to strike respondent's motion to extend. October 13th the motion for new trial was filed and on October 20th the trial court overruled petitioner's motion to strike and respondent's motion for new trial.

At the time petitioner presented his motion, we, by agreement of the parties, gave an extension for the filing of the record so that the issues raised in this petition could be disposed of before respondent has been out any expense in preparing the record on his direct appeal from the judgment of July 26th and the overruling of his motion for new trial on October 20th.

We find no merit in petitioner's contention that the failure to take Dr. Stuckey's deposition after remand, made the first jury verdict res judicata. The prejudicial error in limiting the discovery before the first trial was the lack of information Rickett had for purpose of cross-examination and in securing witnesses to rebut Dr. Stuckey's testimony. Of course this information was acquired from the first trial but not necessarily in time for Rickett to meet the issues in the first trial.

Another collateral argument by petitioner is that the extension was made without notice to him as required by Ark.Stat.Ann. § 27--364 (Supp.1971). Petitioner here shows no prejudice in the failure to have prior...