Huffman v. City of Hot Springs, 5-3145

• Decision Date: 02 March 1964
• Docket Number: No. 5-3145,5-3145
• Citation: 237 Ark. 756,375 S.W.2d 795
• Parties: Billy HUFFMAN, Appellant, v. CITY OF HOT SPRINGS et al., Appellees.
• Court: Arkansas Supreme Court

Page 795

375 S.W.2d 795

237 Ark. 756

Billy HUFFMAN, Appellant, v. CITY OF HOT SPRINGS et al., Appellees.

No. 5-3145.

Supreme Court of Arkansas.

March 2, 1964.

Wootton, Land & Matthews, Hot Springs, for appellant.

Robert D. Ridgeway and Earl J. Lane, Hot Springs, for appellees.

ROBINSON, Justice.

On March 12, 1962, appellant, Billy Huffman, was driving his automobile west on Alcorn Street in the City of Hot Springs. When he reached Central Avenue he collided with an automobile owned by appellee, City of Hot Springs, and being driven by appellee, Bobby Digby, who, at the time, was a city policeman. Digby was answering a call to a corner on Central Avenue where someone had driven a car into the front of a store building. The City of Hot Springs and Digby filed this suit against Huffman, Digby alleging personal injuries and the City alleging damages to the automobile. The trial resulted in a judgment for the City in the sum of $142.00 for damages to the automobile, and Digby recovered a judgment in the sum of $9,000.00 for personal injuries. Huffman has appealed.

Appellant first argues that the trial court erred in sustaining a motion filed by appellees to strike a cross-complaint filed by appellant in which he asked for damages done to his automobile. The suit was filed by the City of Hot Springs and Digby on the 30th day of March, 1962. On the 17th day of April, appellant filed his answer but did not cross-complain. On May 25, a little over a month later, appellant filed a cross-complaint in which he asked judgment in the sum of $272.00 for damages to his automobile. About eight months later, on January 17, 1963, the cause came on for trial, and at that time the court sustained appellees' motion to strike the cross-complaint.

The trial court sustained the motion to strike the cross-complaint on the theory that Ark.Stat.Ann. § 27-1135 (Repl.1962) requires the counterclaim be filed within 20 days from the date of the service of summons, and that here the claim was not filed for more than 30 days after the service of summons. As pointed out in Easley v. Inglis, 233 Ark. 589, 346 S.W.2d 206, in this state, insofar as pleadings are concerned, there does not appear to be any valid distinction between a counterclaim and a cross-complaint.

Ark.Stat.Ann. § 27-1135 (Repl.1962) provides: 'A defendant to any complaint or cross-complaint must appear or plead either generally or specially the first day after expiration of the periods of time set forth below, as the case may be: First. Where the summons has been served twenty (20) days in any county in the state; * * *.'

Ark.Stat.Ann. § 27-1121 (Repl.1962) provides: 'The answer shall contain: * * * A statement of any new matter constituting a defense, counter-claim or set-off, in ordinary and concise language, without repetition. * * * In addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense [,] counter-claim or setoff, whether legal or equitable, as he shall have. * * *'

The construction placed on the statute by the trial court is too narrow. We have held that where a defendant answers without filing any preliminary pleading such as a demurrer or motion, the answer must be filed within 20 days from the service of summons. Walden v. Metzler, 227 Ark. 782, 301 S.W.2d 439; Pyle v. Amsler, 227 Ark. 785, 301 S.W.2d 441. Although those cases construed Acts 49 and 351 of 1955, the rule there announced is applicable to Act 53 of 1957, where, as here, the provisions added by the 1955 Act are not involved. Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S.W.2d 784. We have also held that the filing of a valid motion meets the requirements of the statute, and in cases of that kind a default judgment cannot be taken against the defendant although he has not actually filed an answer. Stokenbury v. Stokenbury, 228 Ark. 396, 307 S.W.2d 894; West v. Page, 228 Ark. 13, 305 S.W.2d 336; Flippin v. McCabe, 228 Ark. 495, 308 S.W.2d 824.

If a defendant files a valid pleading within the prescribed time he has done all the statute requires. We pointed out in Walden v. Metzler, 227 Ark. 782, 301 S.W.2d 439, that the purpose of the statute was to expedite litigation and prevent dilatory tactics. Of course after both parties are in court, the trial judge will not tolerate an unreasonable delay in disposing of the litigation. Here, the filing of the cross-complaint occasioned no delay whatever; it was filed on May 17 and the case did not come on for trial until about eight months later.

In many instances it would be wholly impractical to file a cross-complaint for personal injuries within the 20 day period in which the answer to the complaint must be filed. If the complaint is filed within a few days after the occurrence of the mishap giving rise to the cause of action, and this happens in many instances, the defendant may not know the extent of his injuries, or, for that matter, he may not know that he is injured at all.

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