Lourance v. Lankford

Decision Date03 February 1913
Citation153 S.W. 592,106 Ark. 470
PartiesLOURANCE v. LANKFORD
CourtArkansas Supreme Court

Appeal from Prairie Chancery Court; John M. Elliott, Chancellor modified and affirmed.

STATEMENT BY THE COURT.

Appellant brought suit against appellee in the chancery court of the southern district of Prairie County. Afterward, appellant dismissed his suit, and the following is the record entry of dismissal: "On this day this cause coming on for hearing, comes the plaintiff herein by his attorneys, Manning & Emerson, and on motion of plaintiff, this cause is dismissed at plaintiff's cost. It is therefore considered, ordered and adjudged that this cause be dismissed with prejudice, and that the plaintiff pay all costs accrued herein."

The present proceedings arise on a motion by appellee made in the above entitled cause for a nunc pro tunc order, in which omitting nonessential allegations, the appellee set up that at the April term of the court, 1911, plaintiff, by his attorneys, Manning & Emerson, agreed with defendant's attorneys that they would let a judgment with prejudice be entered which should finally terminate said cause; that said judgment was by the court rendered, but that the record fails to show the agreement. Therefore, appellee prayed that an order be made nunc pro tunc correcting the record of the dismissal of the above styled cause, made and entered at the April term, 1911, so as to speak the truth in the following particulars, towit: "Said judgment should show that said dismissal was a judgment of the court made and entered upon an agreement of the plaintiff and defendant that the case should be finally settled, and that said judgment of dismissal with prejudice should be a final dismissal of the case."

The appellant, in response to the motion, denied that any judgment was made by the court other than that shown by the record, and alleged that no agreement, expressed or implied had ever been made by him or his counsel to the effect that the cause was settled or that the dismissal of the same was a final adjudication and adjustment thereof.

Testimony was taken in support of the motion, in which appellee testified, in substance, that while the cause was pending appellant took certain depositions in which certain letters were made exhibits, and that he asked that an order be made requiring that the depositions and the letters be filed in the cause, and that his attorney informed him that the order was made. Before the April term of the court following, one of appellant's attorneys stated to appellee that no more depositions would be taken and that the case would be dismissed. Appellee reported this fact to his attorneys and asked them to have the record show that the case was dismissed with prejudice.

Witness Thweatt testified that the question of the disposition of the case of Lourance against Lankford was discussed briefly in his presence between Mr. Manning and Mr. Ingram, attorneys respectively for the appellant and the appellee, at the April term, 1911, and that it was agreed and understood that the case would be dismissed with prejudice. Afterward, Mr Manning announced to the court, after calling the court's attention to the case, that he dismissed it with prejudice. The court did not understand the statement and asked the question, and Mr. Ingram, attorney for the appellee, stated that the agreement was that the case would be dismissed with prejudice, and Mr. Manning assented to the statement.

Witness Jno. L. Ingram, testified that Judge Lankford asked him to assist him in the case, and asked him to see that the depositions were filed or that the case would be dismissed with prejudice. That on the first day of the April term, 1911, of the chancery court, Mr. Thweatt, Mr. Manning and he had a conversation about the case, and it was agreed that it should be dismissed with prejudice. After making that agreement, they went before Judge Elliott and one of them, he did not remember which, stated that the case would be dismissed with prejudice, and that the case had been settled.

Witness, Manning, testified that he did not recollect the conversation stated by Judge Lankford to have been had with him in his office. Said there was no discussion of the case about a settlement at the time or prior to the time it was dismissed in the chancery court, and no consideration whatever passed from appellee to appellant for the dismissal or settlement of the case, and the case was never settled in any manner; that there was never any order of the court made to that effect, and he never heard of any proposition of settlement or claim that the case had been settled until after the motion for a nunc pro tunc order was filed in the cause. The cause was dismissed by him, but he had no recollection of using the words "with prejudice." He didn't remember who it was used that language. No order of court was made that the case had been settled.

Mr. Emerson, a witness for appellant, testified that in the conversation at the office of Manning & Emerson between Judge Lankford and Mr. Manning, Mr. Manning did not state that they were going to quit the case, or that there was nothing in it, or that he was disgusted with it. The first time witness ever heard the case had been settled was when they were notified that the motion for nunc pro tunc order had been filed. The case never had been settled, and there never had been any consideration passed from plaintiff to defendant for a settlement, and no offer for settlement either in money or from any other standpoint.

The court, after hearing the evidence, entered the following judgment: "Now, on this day this cause coming on to be heard upon the motion of the defendant herein for an order nunc pro tunc correcting the order of the judgment of dismissal of this cause on the 10th day of April, 1911, comes the plaintiff by Manning & Emerson, his solicitors, and comes the defendant by Jno. L. Ingram and J. G. & C. B. Thweatt, his attorneys, and both parties announcing themselves ready for hearing upon the motion, same is submitted upon the pleadings, the record and evidence adduced; and the court being well and sufficiently advised as to what order to render, doth find that at the April term, 1911, of this court, and on the 10th day of April, that the plaintiff and defendant herein by and through their attorneys, M. J. Manning, for the plaintiff, and Jno. L. Ingram and J. G. Thweatt, for the defendant, agreed to dismiss this cause with prejudice, which, according to the rules of pleading and practice, both at law and in chancery, means a final determination of the case, and that judgment was rendered according to said agreement.

"It is therefore ordered, adjudged and decreed that this cause be, and the same is, by agreement of counsel, aforesaid, of plaintiff and defendant, dismissed with prejudice; it is further ordered and adjudged that plaintiff pay the cost of said suit.

"It appearing from the record, and from the evidence taken upon this motion, as well as from the distinct recollection of the court, that this judgment...

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15 cases
  • Light v. Self
    • United States
    • Arkansas Supreme Court
    • March 24, 1919
    ... ... done." Cox v. Gress, 51 Ark. 224, 11 ... S.W. 416; Gregory v. Bartlett, 55 Ark. 30, ... 17 S.W. 344; Lourance v. Lankford, 106 Ark ... 470, 153 S.W. 592; Citizens' Bank of Mammoth ... Spring v. Commercial Bank, 118 Ark. 497 ... ...
  • Light v. Self
    • United States
    • Arkansas Supreme Court
    • July 14, 1919
    ...speaks, what has been done." Cox v. Gress, 51 Ark. 231, 11 S. W. 416; Gregory v. Bartlett, 55 Ark. 30, 17 S. W. 344; Lourance v. Lankford, 106 Ark. 470, 153 S. W. 592, Ann. Cas. 1915A, 520; Citizens' Bank of Mammoth Springs v. Commercial Bank, 118 Ark. 497, 177 S. W. The county court, under......
  • Bertig Brothers v. Grooms Brothers
    • United States
    • Arkansas Supreme Court
    • June 9, 1924
    ...the judgment as originally entered was correct. 84 Ark. 523, 532. See further on the power to amend judgments by nunc pro tunc orders, 106 Ark. 470; Ark. 234, 237; 118 Ark. 497, 506; 72 Ark. 21; 55 Ark. 30, 37; 34 Ark. 291, 301; 159 Ark. 218; 51 Ark. 224, 231; 40 Ark. 224, 232; 129 Ark. 301......
  • Sloan v. Williams
    • United States
    • Arkansas Supreme Court
    • May 24, 1915
    ... ... speak the truth, but not to make it speak what it did not ... speak, but ought to have spoken. Lourance v ... Lankford, 106 Ark. 470, 153 S.W. 592; ... Citizens' Bank v. Commercial National ... Bank, 118 Ark. 497, 177 S.W. 21 ... ...
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