Tomlin v. Reynolds Min. Corp., 5-1989

• Court: Arkansas Supreme Court
• Writing for the Court: McFADDIN; WARD; HOLT
• Citation: Tomlin v. Reynolds Min. Corp., 329 S.W.2d 552, 231 Ark. 393 (Ark. 1959)
• Decision Date: 14 December 1959
• Docket Number: No. 5-1989,5-1989
• Parties: John F. TOMLIN et ux., Appellants, v. REYNOLDS MINING CORP. et al., Appellees.

Page 552

329 S.W.2d 552

231 Ark. 393

John F. TOMLIN et ux., Appellants, v. REYNOLDS MINING CORP. et al., Appellees.

No. 5-1989.

Supreme Court of Arkansas.

Dec. 14, 1959.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellants.

George W. Johnson, Greenwood, Warner, Warner & Ragon, Ft. Smith, for appellees.

McFADDIN, Justice.

This is an appeal from the order of the Chancery Court refusing a new trial. The claimed ground for the new trial was: 'Accident or surprise which ordinary prudence could not have guarded against' (being the third cause stated in § 27-1901, Ark.Stats.). Appellants say that the accident was the inability to obtain the transcribed testimony of the witnesses.

A decree adverse to the appellants was rendered by the Sebastian Chancery Court, Greenwood District, on December 17, 1958. Notice of appeal ¹ was filed in the Chancery Court on January 7, 1959, and the entire record was designated. By a series of orders the appellants were given until July 17, 1959, to file the transcript of all the testimony; but on March 18, 1959, it became established that such transcript could not be furnished. The regular Chancery Court Reporter, Mr. Batchelor, was in the hospital when the witnesses testified on December 17th, and Mr. Smith acted as substitute Reporter. Unknown to all, and for some unexplained reason, the machine used for taking the testimony of the witnesses was not working properly; and thus it became impossible to transcribe to the pages the record from the machine. This fact was definitely determined on March 18, 1959, when Mr. Batchelor advised the attorney for the appellants:

'The girl who does my typing was able to get the first 22 pages, * * *. I feel that there are some additional parts of the transcript that we could transcribe, but that there is at least 75% that we will be unable to transcribe. Do you want us to transcribe the parts we can and then try to stipulate ² on the parts that cannot be transcribed; and if this is done, it will be very sketchy and probably won't be of much aid in either determining what exhibits were introduced or what the testimony was * * *.'

On April 17, 1959, appellants filed in the Chancery Court their unverified motion for new trial, alleging the facts substantially as hereinbefore stated, and also saying:

'The issues in the case involve a direct controversy between interested witnesses. The exact testimony given by each witness is extremely important in the proper determination of the issues and at this late date it is impossible to accurately stipulate the testimony given. The failure to have a proper transcript on the appeal to the Supreme Court of Arkansas constitutes an accident which the defendants exercising ordinary prudence could not have guarded against.'

This motion for new trial was heard ³ by the Chancery Court on July 14, 1959 and on that date was denied; and from that order there is this appeal. The Chancery Court made the following findings in denying the motion for new trial:

'That said defendants have failed to comply with the provisions of Arkansas Statutes 1947 § 27-2127.11 * * *.

'That said defendants received notice of the state of the record herein on March 18, 1959, one month and 2 days prior to the expiration of the term in which said cause was heard and a decision handed down; but said defendants failed to have said motion for new trial heard until July 14, 1959, three days prior to the expiration of the 7 months maximum time that can be granted for filing the record with the Supreme Court of Arkansas * * *.

'That to grant a new trial in this matter at this time, with said defendants having failed to comply with Arkansas Statutes 1947, Sec. 27-2127.11 and said defendants having no new evidence to present in this matter, presenting only a fact question, would result in unreasonable delay in this matter, and additional expense and inconvenience to the plaintiff and other defendants in this action, which, under the circumstances, would make it inequitable.'

The question before us is whether the Chancery Court abused its discretion in denying the motion for new trial. A lengthy dissertation could be written on this matter of new trial because of the loss of the transcribed testimony. We have at least three cases in Arkansas involving such a situation, and being: Dent v. People's Bank, 114 Ark. 261, 169 S.W. 821; Criner v. Criner, 217 Ark. 722, 233 S.W.2d 393, and Mowrey v. Coleman, 224 Ark. 979, 277 S.W.2d 481. There are many cases from other jurisdictions: we list only a few. Fickett v. Rauch, 31 Cal.2d 110, 187 P.2d 402; Weisbecker v. Weisbecker, 71 Cal.App.2d 41, 161 P.2d 990; Rambo v. Rambo, 84 Cal.App.2d 632, 191 P.2d 480; Duarte v. Rivers, 90 Cal.App.2d 152, 202 P.2d 612; Hoffart v. Lindquist & Paget Mtg. Co., 182 Or. 611, 189 P.2d 592; King v. King, 119 Ind.App. 46, 82 N.E.2d 527; Brooks v. National Shawmut Bank, 323 Mass. 677, 84 N.E.2d 318; People v. Kaplan, 278 App.Div. 665, 102 N.Y.S.2d 714; Dudley v. Hull, 105 Conn. 710, 136 A. 575; Coan v. Plaza Equity Elevator Co., 60 N.D. 51, 232 N.W. 298, and Reynolds v. Romano, 96 Vt. 222, 118 A. 810. To these may be added the other cases cited in the annotations on 'Inability to perfect record for appeal as ground for new trial', as contained in 13 A.L.R. 102; 16 A.L.R. 1158, and 107 A.L.R. 603.

We do not discuss the requirements of § 27-1901 et seq., Ark.Stats., on the necessity of presenting during the term an unverified motion for new trial and the necessity that a motion for new trial be verified when considered after the lapse of the term; because in Mowrey v. Coleman, 224 Ark. 979, 277 S.W.2d 481, 482, we pointed out the correct way in which appellants could undertake to supply a record which otherwise could not be furnished. In that case, as here, the reporter's mechanical device for recording the evidence was out of order so that the testimony could not be transcribed, and we said: '* * * but the statute provides a method for supplying the deficiency in a situation like this. Ark.Stats.1947, § 27-2127.11. These appellants have not availed themselves of the corrective procedure'. The Statute referred to ⁴ above is Section 19 of Act No. 555 of 1953, which reads:

'Appeals When no Stenographic Report Was Made. In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.'

The appellants did not prepare a statement of the evidence of the proceedings, and serve it on the appellee, and proceed as provided in the above section; therefore the appellants are not in a position to say that the Chancery Court abused its discretion in denying the motion for new trial in the case at bar.

Affirmed.

WARD, Justice (dissenting).

I do not agree with the result reached by the majority, nor do I agree with the reason assigned.

The facts in this case are essentially as follows. In certain litigation in the Chancery Court of Sebastian County in which the issue was the ownership of certain oil and gas royalties, considerable oral testimony was taken on two different occasions. On December 17, 1958, the Chancery Court found contrary to the contentions of Mr. and Mrs. Tomlin, the appellants herein. The decree was entered on December 22, 1958, and on January 5, 1959, appellants gave notice of appeal. Following this the attorneys for appellants made a request for a transcription of the testimony in order to prepare for an appeal from the decree entered on December 22, 1958, and sent as an advance payment therefor the sum of $75 on February 13, 1959. The testimony at the two hearings was taken on a 'dictaphone' or recording machine. On March 15, 1959, the reporter informed appellants to the effect that they were having difficulty in transcribing the testimony. Two days later the Chancellor extended the time for securing the record to May 7, 1959, but one day later appellants' attorneys were notified that it was impossible to transcribe the testimony. On April 14, 1959, appellants filed a motion for a new trial on the ground that it was impossible to obtain the record. Thereafter, on April 22, 1959, the Chancellor extended the time for perfecting the appeal to June 17, 1959, and later extended that time to July 17, 1959. On July 14, 1959, the Chancery Court denied appellants' motion for a new trial on the ground, among others, that appellants had not complied with Ark.Stats. Section 27-2127.11. This section in...