Karam v. Halk
| Decision Date | 28 June 1976 |
| Docket Number | No. 75--270,75--270 |
| Citation | 260 Ark. 36,537 S.W.2d 797 |
| Parties | Tommy KARAM and Kar-Mal, Inc., Appellants, v. Clyde O. HALK, Appellee. |
| Court | Arkansas Supreme Court |
Howell, Price, Howell & Barron, Little Rock, for appellants.
Wood, Smith & Schnipper, Hot Springs, for appellee.
Appellee Clyde O. Halk brought suit against appellants for breach of an agreement relating to the operation of a store and for damages to fixtures and equipment. The case was tried to the circuit judge, without a jury, on September 4 and September 11, 1974. On December 6, 1974, the court sent a memorandum letter to the attorneys for all parties making his findings and fixing the damages to be recovered by appellee. On January 2, 1975, judgment based on the court's memorandum letter was entered. When writs of execution and garnishment were issued on this judgment on August 11, 1975, appellants promptly filed a motion to vacate the judgment and a petition for stay of execution. This motion was denied by order entered September 5, 1975. On September 12, 1975, appellants filed notice of appeal from that order and from the judgment entered on January 2, 1975.
The principal ground for reversal is alleged abuse of discretion by the trial court in not setting aside the judgment. In their motion appellants asserted that, even though the circuit judge, in his letter, instructed the attorneys for appellee to furnish a precedent for judgment, appellants received no communication from the attorneys for appellee or from the court indicating that the precedent had been submitted to the court, that such a precedent had been approved or the date upon which the judgment was entered. Appellants alleged that the first notice they had that judgment had been entered was the issuance of writs of execution and that, by reason of the failure of appellee's attorneys to submit a copy of the precedent to appellants' attorneys or to serve a copy of the judgment on them, they were precluded from exercising their right to appeal. Appellants also alleged in their petition for stay of execution that appellee had made no effort to contact appellants to collect the judgment prior to the issuance of execution.
There was a stipulation by the parties that there was no indication in any of the records of appellants' firm of attorneys or in the memory of any of them of the receipt of a copy of the judgment entered on January 2, 1975, but that said attorneys had received the memorandum letter dated December 6, 1974. The trial court's order denying appellants' motions included findings that the memorandum letter was sufficient notice to the parties that judgment would be entered in accordance therewith, that more than one term of court had elapsed between the entry of the judgment and the filing of appellants' motions, that appellants had failed to establish good cause for vacation of the judgment and that the court was without power to vacate, stay ot set aside the judgment.
Appellants argue that appellee and his attorneys, by failing to send them or their attorneys a copy of the precedent for judgment before it was entered, violated Rule 1 e of the Uniform Rules for Circuit and Chancery Courts promulgated by this court on March 1, 1969, and had deprived appellants of their right of appeal by leaving them without any means of determining when the period allowed for giving notice of appeal began to run.
Appellants proceeded under Ark.Stat.Ann. § 29--506 (Repl.1962) and particularly upon subdivision 'Seventh' giving a trial court the power to vacate a judgment after the expiration of the term in which it was entered for unavoidable casualty or misfortune preventing the party seeking relief from the judgment from appearing or defending. They rely not only upon Rule 1 e of the Uniform Rules for Circuit and Chancery Courts, but upon Rule 3 (Praecipe for Orders and Judgments) of the Civil Practice Rules of the Eighteenth Judicial Circuit, filed in the office of the Clerk of this court. The latter rule reads:
Appropriate orders reflecting the action taken by the court on all motions or other pleadings will be prepared by the prevailing party and submitted to the court within five days after the action.
Admittedly this judgment was not entered within five days, but we do not know when the precedent was submitted to the court. We do not agree with appellants' argument that failure to enter the judgment within the five-day period set out in the rule invalidated it. The time limitation was upon the submission of the precedent and not upon the entry of the judgment. Since the judgment was entered by the court, if it was submitted late, we must presume, in the absence of a contrary showing, that the late submission was permitted by the court for good and sufficient reasons. In this respect, the court's consideration and action upon a tardily filed precedent is very similar to its consideration of a tardily filed motion for new trial, in which case like presumptions are indulged. Peek v. Meadors, 255 Ark. 347, 200 S.W.2d 333.
We likewise find no failure to comply with Rule 1 e of the Uniform Rules for Circuit and Chancery Courts, viz:
Attorneys shall serve copies of all of their respective pleadings upon opposing counsel before or at the time of filing, and such papers must indicate the time and method of service.
A precedent for judgment is not, in any sense of the word, a pleading.
The question actually presented is whether the trial court abused its discretion in finding that there was no unavoidable casualty which prevented appellants from protecting their right to appeal. Davis v. McBride, 247 Ark. 895, 448 S.W.2d 37. We are unable to say that there was. In reaching this conclusion, we take at face value appellants' assertions that counsel for appellee admitted in a telephone conversation with counsel for appellants that he had not submitted the proposed precedent to counsel for appellants for approval. Still, there were means available to appellants to avoid the situation in which they find themselves. There is no contention that the judgment entered is not in conformity with the memorandum containing the trial judge's findings. A litigant who makes no inquiry about the entry of a judgment based upon the trial...
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Revised Rules of Appellate Procedure, Matter of
...to ensure fairness when counsel has not received notice of the entry of the judgment or other appealable order. Cf. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). Although under longstanding Arkansas custom counsel have been given an opportunity to approve a judgment or order prepared b......
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Board of Com'rs of Little Rock Mun. Water Works v. Rollins, CA
...deposit nor provided with a copy of the court's order directing the clerk to accept the deposit. The appellant cites Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976), for the proposition that the appellees had an affirmative duty to inquire about the pleadings and orders in the case, and a......
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Jetton v. Fawcett
...during the pendency of an action to which he is a party and to keep himself informed as to the progress of his case. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797. The trial court found that appellants had notice of the withdrawal of The burden of showing unavoidable casualty or misfortune res......
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Jones-Blair Co. v. Hammett, JONES-BLAIR
...to ensure fairness when counsel has not received notice of the entry of the judgment or other appealable order. Cf. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). Although under longstanding Arkansas custom opposing counsel have been given an opportunity to approve a judgment or order p......