Peek v. Meadors

• Decision Date: 22 October 1973
• Docket Number: No. 73--109,73--109
• Citation: 255 Ark. 347,500 S.W.2d 333
• Parties: V. G. PEEK, Appellant, v. Hoyt MEADORS, Appellee.
• Court: Arkansas Supreme Court

Page 333

500 S.W.2d 333

255 Ark. 347

V. G. PEEK, Appellant, v. Hoyt MEADORS, Appellee.

No. 73--109.

Supreme Court of Arkansas.

Oct. 22, 1973.

Harold C. Rains, Jr., Van Buren, for appellant.

Batchelor & Batchelor by Fines F. Batchelor, Jr., Van Buren, for appellee.

FOGLEMAN, Justice.

Appellee has raised a question about the timeliness of the notice of appeal in this case, which we must first consider because it goes to the jurisdiction of this court. Davis v. Ralston Purina Company, 248 Ark. 14, 449 S.W.2d 709. The jury verdict was rendered on November 29, 1972. Judgment was filed on December 13, 1972. Thereafter, on December 15, 1972, appellant filed a motion for new trial. A response thereto was filed by appellee on December 21, 1972. The motion was taken under advisement by the circuit judge on January 10, 1973, and denied on February 6, 1973. Notice of appeal was filed on February 7, 1973.

Notice of appeal must be filed within 30 days from the date of the judgment. Ark.Stat.Ann. § 27--2106.1 (Repl.1962). This time may be extended, however, by the timely filing and disposition of a motion for new trial. Ark.Stat.Ann. §§ 27--2106.3 and 27--2106.4 (Supp.1971). Motion for new trial must be filed within 15 days after the verdict, unless that time expires after adjournment or expiration of the term, in which event, it must be presented to the trial judge within 30 days after the verdict was rendered. Ark.Stat.Ann. § 27--1904 (Repl.1962). It is clear that the time runs from the date of the verdict and not the date of the judgment. Henderson v. Skerczak, 247 Ark. 446, 446 S.W.2d 243.

It can be readily seen that the motion was filed more than 15 days after the verdict and was not presented to the circuit judge until more than 30 days had elapsed. The term of court continued without adjournment until the first Monday in March, 1973. Ark.Stat.Ann. §§ 22--310, 22--312 (Repl.1962). Consequently, presentation of the motion was not required within 30 days after the verdict was returned, if the motion was timely filed. This was not the case unless the taking of the motion under advisement had the effect of extending the time for filing of the motion. We have held that the circuit judge has the authority to extend the time for filing of such a motion. Peterson v. Brown, 216 Ark. 709, 227 S.W.2d 142; Metropolitan Life Ins. Co. v. Thompson, 203 Ark. 1103, 160 S.W.2d 852. If the circuit judge considers a tardily filed motion for new trial, we presume, in the absence of a showing to the contrary, that it was filed with permission of the court, and that the considerations for permitting the late filing were legally sufficient, at least when the motion is filed and considered and acted upon within the term of court during which the verdict was rendered. Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797; Marshall Bank v. Turney, 105 Ark. 116, 150 S.W. 693; Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8; Fordyce v. Hardin, 54 Ark. 554, 16 S.W. 576. Here the verdict was rendered and the motion filed, considered and overruled during the same term of court. Not only is there a failure to show that the court did not permit the late filing or that there were no legally sufficient grounds for doing so, but appellee filed a response to the motion without any mention of its late filing.

Since we must presume that the motion was timely filed, insofar as the requirements of Ark.Stat.Ann. § 27--1904 are concerned, the provisions of Ark.Stat.Ann. §§ 27--2106.3, 27--2106.4 and 27--2106.5 (Supp.1971) come into play. The motion was filed within two days after the entry of the judgment, so the requirements of Ark.Stat.Ann. § 27--2106.3 were met. The circuit judge took the motion under advisement within 30 days after it was filed, so the requirements of § 27--2106.4 were met. The notice of appeal was filed one day after the motion was denied, so the requirements of § 27--2106.5 were met. Since the notice of appeal was given within the time allowed, we consider the appeal on its merits.

We reverse this judgment in favor of a real estate purchaser and against the seller's real estate agent for want of substantial evidence, bypassing other points asserted by appellant, because appellee has correctly pointed out that the pleadings, motion to dismiss, motion for a directed verdict and other pleadings and orders are not sufficiently abstracted. Viewing the evidence (which does appear to have been adequately abstracted) in the light most favorable to the judgment, the facts are as follows:

Peek is a licensed real estate broker. He had a listing from Douglas E. and Marjorie K. McGriff of Hartford, Iowa, for the sale of a tract of land near Mountainburg on which a motel, service station, cafe and other buildings were located. Hoyt Meadors, then a resident of California, observed, while visiting in the community, that the property, of which he had known for many years, was for sale. After his return to California, he authorized his cousin O. D. Meadors to enter into negotiations on his behalf to purchase the property. O. D. Meadors went to view the property with Peek and asked about various items.

When they came to a locked garage building on the premises, both looked through cracks in the door and saw various tools. O. D. Meadors then asked Peek if the items he observed were included in the sale and Peek replied that they were, and that everything on the place went. Peek said that for some reason he did not understand he had the keys to all the buildings except this one, but that he would break the lock on it if necessary. O. D. Meadors replied that it was not, and...