Sawyer v. Hentz

• Decision Date: 25 February 1905
• Citation: 85 S.W. 775,74 Ark. 324
• Parties: SAWYER v. HENTZ
• Court: Arkansas Supreme Court

85 S.W. 775

74 Ark. 324

SAWYER v. HENTZ

Supreme Court of Arkansas

February 25, 1905

Appeal from Chicot Chancery Court MARCUS L. HAWKINS, Chancellor.

Affirmed.

STATEMENT BY THE COURT.

On the 25th day of September, 1901, the chancery court of Chicot County rendered a judgment against Wiley F. Sawyer in favor of Henry Hentz for over four thousand dollars, and declared the same to be a lien on certain lands of the defendant in that county. The decree directed that, in the event that the judgment was not paid on or before the 1st day of January 1902, Robt. W. Reynolds, as standing commissioner of the court, "proceed to advertise and sell the lands as directed in the decree."

Reynolds afterwards resigned his position as master and commissioner of the Chicot Chancery Court, and the chancellor, on the 8th day of November, 1901, made an order in vacation appointing William Kirten as master and commissioner of the Chicot Chancery Court, instead of Robt. Reynolds, who had resigned.

On the 25th day of February, 1902, Kirten, as commissioner proceeded to sell the land under the decree, he acting instead of Reynolds. On June 30 the chancery court of Chicot County reaffirmed and ratified the appointment of Kirten as master and commissioner made in vacation, and ratified and confirmed all his acts theretofore performed as such.

On August 25 Kirten filed his report of the sale of the land made by him. The record shows that no exceptions were filed to the report, but the same was passed until the adjourned term to enable the defendant to redeem the land. The land was not redeemed, and on the 13th day of September the report of sale was confirmed. The decree then recites that "thereupon comes the plaintiff, by his attorney, W. G Streett, and files with the court exceptions to the confirmation of said report," which is by the court overruled, and plaintiff prays an appeal to the Supreme Court, which is granted.

Judgment affirmed.

W. G. Streett and N. B. Scott, for appellants.

The appointment of William Kirten in vacation was a nullity, and he had no power to make the sale. Sand. & H. Dig. §§ 572, 573; 66 Ark. 367; 2 Wall. 609; 11 F. 273.

E. A. Bolton and Baldy Vinson, for appellees.

The record before the chancellor is not before the court. 38 Ark. 444; 35 Ark. 225; 36 Ark. 484; 69 Ark. 23. No objection was made to the sale until after confirmation; this was too late. 9 Ala. 297; 22 Kan. 243; 70 Am. Dec. 579; 17 Am. & Eng. Enc. 993; 122 Mo. 181; 107 Mo. 371; 102 Mo. 77; 15 Ohio St. 548; 29 Id. 651; 17 Am. & Eng. Enc. 993. The court has a right to appoint whomsoever it pleases. 17 Am. & Eng. Enc. 953; 53 Ark. 110; 32 Ark. 291; 20 Ark. 652; 8 How. 495. The confirmation of the sale cured all defects. 145 U.S. 349; 68 Ill. 58; 41 Mo. 288; 43 Mo. 329; 57 Mo. 276; 92 Mo. 192; 19 How. 69.

OPINION

RIDDICK, J., (after stating the facts.)

The only question involved in this appeal is whether the fact that the commissioner who made the sale of the lands in question was appointed in vacation renders the sale void, or was such a gross irregularity as demands that the sale should be set aside and a new sale ordered. The record, when taken all together, shows that there was no exception to this sale by Kirten until after the sale had been confirmed; but at the same term, and immediately upon the confirmation of the sale, the appellant did appear and file exceptions on the ground that Kirten had no authority to make the sale, and for that reason they asked that the sale should be set aside. But it is not alleged that appellant suffered any injury from such irregularity, and we are of the opinion that it was too late to make objections thereto after the sale had been confirmed, even if we concede that the chancellor had no authority to make the appointment in vacation. Link v. Connell, 48 Neb. 574; Dickinson v. Dickey, 14 Hun 617; Core v. Strickler, 24 W.Va. 689.

The order confirming sale is therefore affirmed.

Reversed and remanded.

RIDDICK, J. WOOD, J., concurs. MCCULLOCH, J., concurring. HILL, C. J., dissenting. BATTLE, J., dissents on the ground that the evidence fails to show that the plaintiff was entitled to recover.

OPINION

RIDDICK, J.

We have heretofore decided that the judgment of the circuit court in this case should be reversed, and a new trial ordered, on account of error in the admission of evidence which, to quote from the opinion delivered, was "calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted." The court was of the opinion that the evidence was sufficient to warrant a verdict against the defendant, and that the error committed did not affect the finding of the jury on the question of whether the defendant was liable for the injury suffered by plaintiff, but that it probably enhanced the damages found by the jury.

ON MOTION OF PLAINTIFF TO BE ALLOWED TO ENTER A REMITTITUR.

The counsel for plaintiff now asks leave to be allowed to enter a remittitur for such sum as will relieve the judgment of any excess in the way of damages and remove the effects of the error in the admission of improper testimony. The first question presented is whether a judgment for any amount can be permitted to stand in a case of this kind where there has been improper evidence admitted. The tendency of the late decisions, says Mr. Sutherland in his work on Damages, "is in the direction of unqualified support for the practice which allows the appellate and trial court, in cases in which excessive damages have been awarded and in which the plaintiff is entitled to substantial damages, to indicate the excess and give him the option to remit or take judgment for the residue, or to be awarded a new trial." Sutherland on Damages (3d Ed.), § 460.

A question of remittitur was considered by this court in a recent case, where it was said that the "theory upon which a remittitur is allowed is that the appellant has no just complaint, save that the damages are excessive, and that, inasmuch as the appellate court can say that the given verdict is excessive, it can designate an amount that will not be, and give the successful party the option to remit the excess or submit to a new trial." But in that case the court held that the remittitur could not be allowed, because the error complained of might, in the opinion of the majority of the judges, have affected the verdict on the question of whether the defendant was liable for damages or not. St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 619, 48 S.W. 222.

The court in that opinion was discussing a case in which the damages were held to be excessive; but a remittitur may be permitted not only to cure the excess in a verdict which is plainly excessive but also to cure any possible effect of evidence improperly admitted, the effect of which may have been to unduly enhance the amount of the damages. For, to quote the language of a late decision of the Supreme Court of Wisconsin, "there is no good reason to restrict the practice so as to exclude any case, whether on contract or sounding in tort, where the plaintiff is clearly entitled to recover, and a sum can be named which, in all reasonable probability, will not exceed the amount which a jury will ultimately give him." Baxter v. Chicago & N.W. Ry. Co., 104 Wis. 307, 80 N.W. 644.

Where the right to recover is clear, and has been established by the verdict of a jury, and where the errors committed in the trial go only to the enhancement of the amount of the verdict, and do not affect the question of whether defendant is liable or not, then, if the verdict be excessive, or if, on account of improper evidence, or improper argument of counsel tending to enhance the amount of damages allowed, the court is not able to say from the evidence that the verdict is not excessive and that the defendant was not prejudiced, in respect to the amount of the damages assessed, by such improper evidence or argument, the court may, in its discretion, name a sum which is clearly not excessive, and as a matter of grace to the plaintiff allow him to accept judgment for that amount, instead of a new trial. St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 619, 48 S.W. 222; Little Rock & Ft. S. Ry. Co. v. Barker, 39 Ark. 491; Baxter v. Chicago & N.W. Ry. Co., 104 Wis. 307, 80 N.W. 644; MacCarthy v. Whitcomb, 110 Wis. 113, 85 N.W. 707; Hocks v. Sprangers, 113 Wis. 123, 87 N.W. 1101 Rueping v. Chicago & N.W. Ry. Co., 116 Wis. 625, 93 N.W. 843; Telegraph Co. v. Frith, 105 Tenn. 167, 58 S.W. 118; Trow v. Village of White Bear, 78 Minn. 432, 80 N.W. 1117; Wimber v. I. C. Ry. Co., 114 Iowa 551, 87 N.W. 505; Ribich v. Lake S. S. Co. 123 Mich. 401, 82 N.W. 279; Belt v. Lawes, 12 Q. B. Div. 356; 2 Sutherland on Damages (3d Ed.), § 460; 13 Cyc 134.

In doing this the court does not invade the province of the jury, for the court is not undertaking to state the exact amount of pecuniary loss which plaintiff has suffered, but is only naming an amount which, under the evidence, the court can see is clearly not excessive. As the matter of permitting a remittitur to be entered, and allowing the judgment to stand for the remainder, is largely a matter of discretion the court will be less inclined to grant this privilege where the errors at the trial have been gross, or where improper conduct on the part of plaintiff or his counsel has been such as to excite the prejudices of the jury; and it will be more inclined to grant it in cases where there has been a fair and impartial trial, but where, on account of mere error in the finding of the jury, the damages allowed are greater than the evidence justifies. As the error pointed out in this case was not a very culpable one, or one that involves any reflection on plai...