North State Fire Insurance Company v. Dillard

• Decision Date: 22 June 1908
• Citation: 111 S.W. 1003,86 Ark. 561
• Parties: NORTH STATE FIRE INSURANCE COMPANY v. DILLARD
• Court: Arkansas Supreme Court

111 S.W. 1003

86 Ark. 561

NORTH STATE FIRE INSURANCE COMPANY v. DILLARD

Supreme Court of Arkansas

June 22, 1908

Appeal from Garland Circuit Court; W. H. Evans, Judge; motion to affirm denied.

Motion denied.

Appellant pro se.

C. V Teague, for appellee.

OPINION

PER CURIAM.

On the 23d of January, 1908, A. J. Dillard recovered judgment in the Garland Circuit Court against the North State Fire Insurance Company in the sum of $ 2,250, penalty and attorney's fees. The insurance company filed a motion for new trial which was overruled on the 30th day of January, and appeal was thereon prayed to the Supreme Court, which was granted, and sixty days given in which to file bill of exceptions. On the 28th day of March, 1908, the bill of exceptions was filed.

On the 11th day of April, 1908, a supersedeas bond was filed in the circuit court. On the 22d day of May, 1908, Dillard gave notice that on the first of June he would move this court for an affirmance of the judgment pursuant to Rule 7 for failure to file authenticated copy of record within 90 days as prescribed by section 1194, Kirby's Digest; and on said day he filed herein a certified transcript of the judgment appealed from, the order granting the appeal, and the supersedeas bond, and his motion to affirm the judgment, showing service of said motion more than ten days before the first of June. The insurance company filed a response thereto, in which it sought to excuse its delay, and showed that it had, on the 27th of May, five days after the service of said notice upon it, presented to the clerk of this court an authenticated copy of the record and prayed an appeal from him, which was granted on said day. The question is, whether the appellee is entitled to have the judgment affirmed under Rule 7, under the facts above stated.

In Robinson v. Ark. Loan & Trust Co., 72 Ark. 475, 81 S.W. 609, it was held that where an appeal was taken but not perfected, the appellant could dismiss the appeal and take another within the year prescribed by the statute, and this was true where the judgment was superseded as well as where it was not. It was further held that it was better practice to dismiss the appeal before the second was taken; but in effect the granting of the second appeal was a voluntary dismissal of the first. This case was followed in Damon v. Hammonds, 73 Ark. 608, 84 S.W. 796.

Under this construction of the statute, the action of the appellant in filing his authenticated copy of the record and obtaining the second appeal...