Roberts & Schaeffer Company v. Jones

Decision Date11 March 1907
Citation101 S.W. 165,82 Ark. 188
PartiesROBERTS & SCHAEFFER COMPANY v. JONES
CourtArkansas Supreme Court

Appeal from Sebastian Circuit Court, Greenwood District, Styles T Rowe, Judge; affirmed.

Judgment affirmed.

Read & McDonough for appellant.

On motion to strike out bill of exceptions:

1. After the court had signed appellant's bill of exceptions, appellee moved to set aside the order allowing the bill of exceptions, which was denied. This was not a matter from which appellee could appeal to this court. Kirby's Digest, §§ 1189, 1190; 26 Ark. 468; 27 Ark. 113. See, also, Kirby's Digest, § 6221; 33 Ark 569; 46 Md. 226; 2 Ark. 512. On appeal a bill of exceptions presented by the appellee will not be considered. 15 Mo.App 585. There is therefore nothing before the court except the original transcript, which shows that the court was regularly in session at the time appellant's bill of exceptions was allowed and signed. A court has control over its orders and judgments during the term in which they are made, and for sufficient cause may modify or set them aside. 27 Ark. 295.

2. The court had the power to set aside the order allowing 90 days in which to file the bill of exceptions. The Missouri statute and cases cited are inapplicable. In those cases the lower court attempted to extend the time without setting aside the former order limiting the time, but here the former order was set aside, and in the same term in which the former order was made. Ubi supra; 49 N.W. 377; 48 N.W. 227; 50 N.W. 718; 53 Md. 37; 11 Mich. 60; 19 D. C. 372; 29 Wis. 439; 103 N.W. 397. See also 138 F. 37; 3 Ark. 451. It is contended that because the clerk did not enter upon the record the order of January 23rd, there was no adjournment to a specific day. This court has held to the contrary. 39 Ark. 448. Held also that an order adjourning the court was a sufficient entry. 57 Ark. 10. It is provided that each circuit court shall continue in session at each term until the business pending therein shall be disposed of, or until it becomes necessary to adjourn the same in order to reach the court next to be held in the circuit. Kirby's Digest, § 1320. Special adjourned sessions of any court may be held in continuation of the regular term upon being so ordered by the court or judge in term time and entered by the clerk on the record. Ib. § 1531. And all proceedings had at the adjourned sessions are considered as proceedings of the term so adjourned. 2 Ark. 229; 65 Ark. 404. The court may provide for a special adjourned session of the term to be held after the next regular term in another court of the circuit. 32 Ark. 278; 57 Ark. 10. So long as the court has not adjourned, it has ample authority to extend time for filing a bill of exceptions. 58 Ark. 110; 53 Ark. 415; 52 Ark. 554.

3. It was within the discretion of the judge to say whether or not he would testify, and his refusal cannot be construed as impeaching the record. Kirby's Digest, § 3144; 60 Ark. 85. See also Rapalje on Witnesses, § 45. The presumption is that the record of the court is correct. 20 Ark. 92.

On the motion to correct the record in the court below:

1. If it be conceded that the judge left the court room on January 23rd without making an adjourning order, it does not follow that the term lapsed,--the business of the term at that time not being disposed of. Adjourning orders from day to day and from time to time are not necessary. Kirby's Digest, § 1320; 53 Barb. 42; 47 Tex. 90; 4 Ky. 475; 8 Kan. 358; 7 Kan. 386 and cases cited; 6 Lea, 198; 9 Heisk. 489; 30 Ia. 168; 41 So. 995; 64 Pa.St. 454; 99 Ky. 542; 24 N.C. 101.

If the adjourning order of January 23rd be stricken out, still there is an absolute failure, under the evidence in the record, to show that the adjourning order was not made on some other day. And the presumption that it was made is not taken away by the intervention of the circuit court of Scott County. Ubi supra; 39 Ark. 448; Kirby's Digest, § 1531; 2 Ark. 231; 11 Ark. 407; 85 P. 1043; 13 Ark. 673; 78 N.W. 602; 65 F. 433; 115 N.Y. 185; 37 P. 1069; 30 Ark. 472; 148 U.S. 245; 68 F. 446; 40 Me. 446; 22 Ill.App. 637; 70 F. 885; 2 Grat. 594; 40 Kan. 474; 7 So. 784.

See also, on the proposition that the court remained in session, although no adjourning order was made on January 23rd, 12 S.E. 457; 31 Md. 247; 22 S.C. 412; 28 Ind. 458; 81 Ind. 78; 9 Port. (Ala.) 218; 92 M. C. 476; 48 Cal. 85; 22 F. 536; 25 N.W. 780; 35 S.W. 279; 2 Head, 582; 1 Bibb, 575; 11 Bush, 238.

2. The ninety days time allowed in which to file the bill of exceptions did not run from the date of the order allowing time, but from the date the term expired. 37 So. 687; 25 So. 573; 78 N.W. 382; 65 N.E. 4. See also 3 Ark. 451; 72 Ark. 264.

T. B. Pryor, for appellee.

1. After the ninety days had elapsed which were allowed by the court for filing the bill of exceptions, the court was without authority to extend further time. Compare Kirby's Digest, § 6222, with Rev. Stat. Mo. § 2168; 83 S.W. 539; 119 Mo. 69; 113 Mo. 559; 24 Ind. 347; Wells, Questions of Law and Fact, 640; 3 Enc. Pl. & Pr. 482-3; 3 Cyc. 42-3; 53 Ark. 415; 39 Ark. 558; 42 Ark. 488; 58 Ark. 112. The court had no jurisdiction, after appeal granted, to set aside an order, but only retained jurisdiction to settle the bill of exceptions. 2 Cyc. 966.

2. The court was not legally in session on March 12th. When the time came for opening the term of court in Scott County, the term of court for the Greenwood District of Sebastian County expired ipso jure. 69 Ark. 457; 21 Mo.App. 322; art. 7, § 12, Const.; 20 Ark. 77; 2 Ark. 229.

OPINION

MCCULLOCH, J.

Since the consideration of appellee's motion to strike out the bill of exceptions was on a former day postponed, he filed his motion in the circuit court during the regular January term, 1907, asking that the record of an order of the court purporting to have been made on January 23, 1906, adjourning to March 12, 1906, and the record of subsequent orders of the court affecting this cause, be corrected and set aside. The court heard oral evidence upon this motion and granted the prayer thereof, and appellant took an appeal to this court from the order and judgment of the court correcting the record of the former adjourning orders.

The court found from the evidence that there was an adjournment on January 23, 1906, without making any order to that effect and without announcing or fixing any date at which the court would reconvene, and that no such order of adjournment was made or entered until March 12, 1906, when an adjourned session was attempted to be held by the circuit judge. The court declared as a matter of law, upon those facts, that the court was not legally in session on March 12, 1906, or any subsequent day until the next regular term. If that ruling be correct, the court was not legally in session when further time for filing the bill of exceptions in this case was granted, and the order is void. Appellee introduced a number of witnesses, attorneys at law and other officers of the court, whose testimony tended to show that no order of adjournment was ever pronounced by the court. Appellant introduced as a witness the former circuit judge who presided during the entire term of court in question and on the days from which and to which adjournments were had according to the record entries, and he testified, in substance, that he left the bench on January 23 with intention to reconvene the court on a later day, but he did not remember whether or not he made an announcement or whether he had in mind at the time any particular day for reconvening; that it was customary to adjourn over from time to time, and that he usually looked at the calendar and picked out a day on which he intended to reconvene the court, but could not remember whether or not he did so on this occasion.

We must give full force to the finding of the trial judge on disputed questions of fact. The proceeding to have a record corrected, where oral testimony is heard by the court, forms no exception to this rule. If there is substantial evidence in support of the finding of the trial court, we should not disturb it. Of course, the record entry sought to be corrected is presumed to be correct until the contrary is shown, but this is a direct, not a collateral, attack upon it, and it does not import absolute verity. It can be impeached aliunde by competent testimony. Bobo v. State, 40 Ark. 224; Ward v. Magness, 75 Ark. 12, 86 S.W. 822; Arkadelphia Lumber Co. v. Asman, 79 Ark. 284, 95 S.W. 134. The evidence of the witnesses introduced by appellee was sufficient to support the finding of the court that there was no adjournment over to March 12, and the testimony of the judge who presided does not show such an adjournment. The most that his testimony definitely establishes is that he left the bench without ordering an adjournment, and that he intended to leave the court open for the transaction of other business, and did leave it open. But there is no proof at all that there was an adjournment over to the date named; and if we concede that where no adjournment was ordered at all the court stood open from day to day, still the term ended by operation of law when the time for holding court in another county in the circuit intervened. The statute fixes the first Monday in February as the time for holding circuit court in Scott County, a county of the same circuit, and that date intervened between the last sitting of the Sebastian Circuit Court for the Greenwood District on January 23 and the day to which the record entries show it was adjourned.

It is earnestly argued by learned counsel for appellant that by operation of the statutes of this State the circuit court stands open from day to day without an order of adjournment,...

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