Thomas v. Arnold
| Decision Date | 12 October 1936 |
| Docket Number | 4-4376 |
| Citation | 96 S.W.2d 1108,192 Ark. 1127 |
| Parties | THOMAS v. ARNOLD |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Third Division; J. S. Utley Judge; affirmed.
Action by W. H. Arnold against S. R. Thomas. From a judgment in favor of plaintiff defendant appealed.
Judgment affirmed.
W T. Pate, Jr., for appellant.
Joe B. Norbury and Tom W. Campbell, for appellee.
Appellee sued appellant on a promissory note for $ 1,500, dated April 12, 1934, due one year after date with interest from date at 6 per cent. Appellant answered denying all the material allegations of the complaint, but without setting up any affirmative defense. The case was set for trial for October 30, 1935, at which time appellant made default. A jury was empaneled, evidence heard, and a verdict rendered for appellee on the instruction of the court so to do, upon which judgment was entered. Within apt time a motion for a new trial was filed in which it was alleged that the court was advised on the day of trial by counsel that appellant was ill and unable to attend court and that permission was granted counsel to have his client examined by a physician to ascertain his condition; that while he was absent getting an examination made, the case was heard and determined in his absence; that he secured a certificate from a physician to the effect appellant was too ill to attend court, which was filed with his motion for a new trial. On February 28, 1936, by permission of the court, appellant filed all amendment to his motion in which he alleged he had a meritorious defense to the action on the note in that the note was secured by appellee through the fraudulent representation that he was a lawyer and that appellant thought the note was given for legal services, when, in fact, appellee was not a lawyer and that he was only indebted to him for services in securing evidence which was used in the trial of his case. Appellee responded denying all the grounds set up in both the motion and the amendment thereto. A hearing was had on the motion at which the physician making the affidavit above referred to and Mrs. Ben Young, keeper of the hotel where appellant was living, testified to his physical condition on the date of the trial, October 30, 1935. The physician made his examination about 1:00 p. m. on said date and thought at that time appellant was too ill to attend court. He was not appellant's regular physician and examined him on said date to determine his condition. According to Mrs. Young, appellant had not consulted a physician or been previously treated by one during his stay at her hotel.
The court overruled the motion for a new trial and the amendment and this appeal followed.
As stated by counsel for appellant: "The only question involved in this appeal is the proper exercise of the discretion of the court in the trial of this action." It is conceded that the granting of a new trial rests in the sound discretion of the trial court and that this court will not reverse on this account except for a...
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... ... have been an abuse of discretion we would not disturb the ... action of the court here. Thomas" v. Arnold, ... 192 Ark. 1127, 96 S.W.2d 1108. We find nothing in this record ... that indicates that the court abused its discretion ... \xC2" ... ...
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Karnes v. Gentry, 4-7046.
...court, and unless there appears to have been an abuse of discretion we would not disturb the action of the court here. Thomas v. Arnold, 192 Ark. 1127, 96 S.W.2d 1108. We find nothing in this record that indicates that the court abused its After a careful review of the record presented, we ......