Henderson v. Skerczak, 5--5010

• Decision Date: 27 October 1969
• Docket Number: No. 5--5010,5--5010
• Citation: 247 Ark. 446,446 S.W.2d 243
• Parties: Zeachel Thomas HENDERSON, Appellant, v. William A. SKERCZAK, Appellee.
• Court: Arkansas Supreme Court

Page 243

446 S.W.2d 243

247 Ark. 446

Zeachel Thomas HENDERSON, Appellant, v. William A. SKERCZAK, Appellee.

No. 5--5010.

Supreme Court of Arkansas.

Oct. 27, 1969.

Shaw, Jones & Shaw, Ft. Smith, for appellant.

Murphy & Carlisle, Fayetteville, for appellee.

BROWN, Justice.

Skerczak sued Henderson for personal injuries arising out a vehicular collision. The jury found in Henderson's favor. Twenty-four days after the jury returned its verdict, Skerczak filed a motion for new trial which was granted. Henderson appeals from that order, contending (1) the motion was filed out of time, and (2) there was no showing justifying a finding of unavoidable delay in filing the motion.

With respect to the issue over the timely filing of the motion, Skerczak contends it was actually filed in time. Skerczak interprets the statute to mean fifteen days after judgment. The jury verdict was returned on November 26; a signed judgment was entered on December 11; and the motion for new trial was filed on December 18. (These dates are all in the same court term.) So if the time starts running from the date of judgment, rather than the date of the jury verdict, Skerczak is correct. The applicable statute is Ark.Stat.Ann. § 27--1904 (Repl.1962). The portion here pertinent provides that an application for a new trial (excepting one based on newly discovered evidence) shall be made within fifteen days 'after the verdict or decision was rendered, unless unavoidably delayed; * * *.'

We cannot read 'judgment' into the quoted statute. The drafters of our Civil Code had a number of occasions to use the words 'verdict' and 'judgment.' They are not used interchangeably. For example, in one instance we find the phrase, 'judgment must be entered by the clerk in conformity with the verdict.' Ark.Stat.Ann. § 29--109 (Repl.1962). Then in § 29--111 it is stated that 'judgment shall be so entered by the court, though a verdict has been found against such party.' The distincy difference between the two words is almost universally recognized in jurisprudence. City of Aurora v. Powell, 153 Colo. 4, 383 P.2d 798 (1963); Schofield v. Baker, 242 F. 657 (9 Cir. 1917). It was aptly said in the Powell case:

The jury made these findings of fact. Such findings do not constitute a judgment. The verdict is not a judicial determination, but rather a finding of fact which the trial court may accept or reject and utilize in formulating a judgment. To constitute a judgment, there be a judicial act.

We also think it is of some significance that the two words are treated in our Criminal Code as being distinct. We refer to the section governing the application for a new trial, Ark.Stat.Ann. § 43--2202 (Repl.1964). There it is said, among other things, that the application must be made 'at the same term at which the verdict is rendered, unless the judgment is postponed to another term, * * *.'

This brings us to the second point on appeal. Appellant contends there was no substantial evidence of unavoidable delay a found by the trial court. Counsel for Skerczak moved to strike the motion for a new trial and the court conducted a hearing. The reporter testified and counsel for Skerczak made a statement. That evidence showed that counsel for Skerczak ordered Henderson's testimony transcribed. The order was placed 'within a week or ten days' after the trial on November 26. Counsel desired to attach a copy of Henderson's testimony to the motion for new trial to support his point that Henderson's testimony itself was...