Shorter University v. Franklin

• Decision Date: 10 June 1905
• Parties: SHORTER UNIVERSITY v. FRANKLIN
• Court: Arkansas Supreme Court

88 S.W. 587

75 Ark. 571

SHORTER UNIVERSITY v. FRANKLIN

Supreme Court of Arkansas

June 10, 1905

Appeal from Pulaski Circuit Court, EDWARD W. WINFIELD, Judge.

Affirmed.

Judgment affirmed.

John Barrow, for appellant.

Maloney & Maloney, for appellee.

The finding of the jury will not be disturbed where there is evidence to support it. 57 Ark. 577; 25 Ark. 474; 31 Ark 163; 23 Ark. 131. The question of service cannot be raised here for the first time. 35 Ark. 95; 38 Ark. 102; 25 Ark 164; 33 Ark. 107; 14 Ark. 235. A defective complaint will be considered as amended where both parties without objection directed their evidence to the same issue. 54 Ark. 289; 59 Ark. 215. The court had power to amend the judgment. Kirby's Dig. § 6145; 32 Ark. 612; 39 Ark. 337; 25 Ark. 212.

OPINION

HILL C. J.

This is a cause originating in justice of the peace court, and, after trial on appeal in circuit court, is brought here. The contest seems to have been whether a grocery bill of $ 54.95 was properly charged to Shorter University or to one W. C. Cox, the manager of the boarding department of the university. The appellant has wholly failed to set forth "the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the records as are necessary to a full understanding of all questions presented to the court for decision," as required by Rule IX. None of the instructions are set out, and therefore the court must assume that the jury was correctly instructed. Koch v. Kimberling, 55 Ark. 547, 18 S.W. 1040; Carpenter v. Hammer, ante, p. 347.

The appellant contends that there is no proof to show that Shorter University agreed or undertook to pay this bill, and then says: "By reference to the testimony of T. H. Jackson (see Tr. p. 59) and the testimony of J. W. Walker (see Tr. p. 67), etc., it is conclusively shown," etc. "This is what Mr. Justice Mansfield described in this language: "And content themselves with a mere reference to it (the testimony) by way of insisting upon its insufficiency." The court added: "The rules of practice do not make it our duty to explore the transcript for the evidence thus omitted." Ruble v. Helm, 57 Ark. 304, 21 S.W. 470. To properly understand the case, each of the five judges of this court would have to take turn about in exploring the transcript to discover the facts of the case. The rule was promulgated twenty years ago to obviate that slow and tedious method of trial in this court. For a recent discussion of the proper office of the abstract and transcript, reference is made to Neal v. Brandon, 74 Ark. 320, 85 S.W. 776.

The judgment seems to have been first rendered against T. H Jackson as superintendent of Shorter University, and afterwards, on motion, which was resisted, amended so as to be rendered against the corporation. It was in,...