Widmer v. Fort Smith Vehicle & Machinery Corp.

• Decision Date: 27 May 1968
• Docket Number: No. 5--4568,5--4568
• Citation: 244 Ark. 971,429 S.W.2d 63
• Parties: Carl W. WIDMER, Appellant, v. FORT SMITH VEHICLE & MACHINERY CORPORATION, Appellee.
• Court: Arkansas Supreme Court

Page 63

429 S.W.2d 63

244 Ark. 971

Carl W. WIDMER, Appellant, v. FORT SMITH VEHICLE & MACHINERY CORPORATION, Appellee.

No. 5--4568.

Supreme Court of Arkansas.

May 27, 1968.

Rehearing Denied July 15, 1968.

See also 244 Ark. 993, 429 S.W.2d 70.

Carl W. Widmer, pro se (unlicensed).

Hardin, Barton, Hardin & Jesson, by Wm. Powell Thompson, Ft. Smith, for appellee.

HARRIS, Chief Justice.

This is an appeal from a decree of the Sebastian County Chancery Court dismissing appellant's complaint with prejudice after the latter failed to offer any proof, or go forward with the evidence on the day set for trial. In November, 1965, appellant, Carl W. Widmer, instituted suit in the Sebastian Circuit Court against the Fort Smith Vehicle and Machinery Corporation, appellee herein, alleging that appellee had, through their employees and agents, entered illegally upon his farm, and removed a certain John Deere disk harrow, which belonged to him, having been purchased by appellant on June 12, 1962. According to the complaint, this purchase had been financed in part with an equipment note of that date, which was later marked, 'Paid,' by the First National Bank of Fort Smith on March 12, 1963. It was alleged that the value of the disk harrow at the time of the wrongful taking was $980.00, and that the yearly rental value of same was $300.00; further, that after obtaining possession of this machinery, appellee had unlawfully converted and disposed of the same, and appellant had sustained actual damage in the amount of $1,702.00. Punitive damages were also sought in the sum of $2,500.00.

Apellee answered, denying that Widmer owned the harrow or that it had been wrongfully taken; it was asserted that on June 12, 1962 the company sold the disk harrow to appellant, and also a grain drill, but that on March 12, 1963, Widmer purchased a John Deere drill with fertilizer attachment, agreeing to pay the sum of $7,700.00; that there was still a balance of $757.11 on the June note, and the drill purchased on the June date was traded in on the new drill; further, that as a matter of accommodation, the disk harrow was placed in a new contract, and combined with the purchase made in March, 1963, a new note being executed for the balance then due in the total amount of $1,602.10. Thereafter, according to the answer, the company proceeded to cancel the note of June 12, 1962. It was further stated that on December 8, 1963, appellee proceeded to take possession of the equipment under a provision of the March 12 contract which permitted it to do so if there was default in the payment of any installment due on the note, or if the company deemed itself insecure. According to the answer, there was a default, and the company acted in accordance with the agreement. A countterclaim was filed, stating that the drill and disk, after being repossessed, were sold, but the company sustained a loss in the amount of $750.00 for which it was entitled to judgment.

Widmer responded to this answer, and counterclaim, by alleging that appellee had fraudulently and materially altered the contract and note after their execution without his knowledge and consent by adding the John Deere disk harrow to these later instruments; that appellee held no valid agreement or note as to the disk harrow, the indebtedness for that particular machinery having been paid under the note of June 12, 1962. Appellant filed requests for admissions, all of which were answered, and either admitted or denied. Thereafter, interrogatories were served on appellee on July 5, in effect asking for the reasons for the denial of a number of the requests for admissions. Another set of interrogatories was filed on July 8, asking for additional information, and still again, interrogatories were filed on July 15. Appellee filed a motion to quash these interrogatories, asserting that they had been propounded simply for the purpose of annoyance, expense, embarrassment, and oppression.

The court granted this motion as to the interrogatories of July 5 and July 8, and also as to those of July 15, except as to interrogatories No. 3 and 4, which the court directed appellee to answer not later than September 8. This was done, and appellee also took a non-suit as to its counterclaim. Widmer then filed a motion for summary judgment, and appellee filed a motion to transfer the cause to equity, alleging there was a need for reformation of the contract. The court entered its order, finding that there appeared to be discrepancies in the written instruments as to the description of the property purchased and the due dates for payments; that the terms of the contract needed to be more clearly defined, and the case was transferred to the Chancery Court.

There, appellant moved for a summary judgment, and filed an affidavit in support of same. Appellee responded, stating that a mutual mistake had been made as to due dates in the contract, but that irrespective of this fact, appellee had been given the right under the contract and note to repossess the property, should appellant be in default. It was prayed that the motion for summary judgment be denied, and that the instruments be reformed to reflect the true intentions and transactions of the parties. On August 16, the Chancellor denied the motion for summary judgment, holding that there were genuine and material issues of fact raised by the pleadings, and by the statement of the parties, and that the matter could only be resolved by a trial. On September 11, the case was called for trial, at which time Mr. Widmer stated that he did not choose to call any witnesses or testify in his own behalf but would instead stand on his motion for summary judgment, with affidavit attached. Counsel for appellee, when asked if he desired to place a witness on the stand, replied that, since the motion for summary judgment had been previously overruled by the court, the appellant had the burden of establishing a prima facie case based on evidence, and this not being done, appellee was entitled to judgment. When appellant again stated that he would stand on his motion, the court granted defendant's motion, and subsequently signed a decree dismissing appellant's complaint. ¹ From that decree, appellant brings this appeal. For reversal, it is first argued that the trial court erred in not deeming all requested admissions of fact contained in request for admission of facts dated February 25, 1966, as admitted. Appellant points out that no sworn statement denying the requested admissions was ever served on appellant. Admittedly, the original was signed and sworn to, but the signing of the copy was apparently overlooked--we say overlooked, because there would have been no reason to sign the original and purposely fail to sign the copy. The offer was made by appellee to sign and verify the answers before the case was disposed of. We find no merit in appellant's assertion. In Kingrey v. Wilson, 227 Ark. 690, 301 S.W.2d 23, the appellant submitted a request for admissions which appellee answered within the time designated, but not under oath. The trial court however, allowed appellee to verify her answers to the questions at the beginning of the trial, and this court refused to declare error, stating, 'In so doing, the court was clearly acting within its discretion.'

It is next asserted that the trial court erred in not requiring all interrogatories which were presented to appellee to be answered. We do not agree. Part of these interrogatories were apparently for the purpose of having appellee enlarge upon its answers to the requests for admissions, and the court, on the third group of interrogatories, did require appellee to answer two of them, but granted appellee's motion to quash the rest. Ark.Stat.Ann. § 28--355 (Repl.1962) gives the court, on motion of the party interrogated, the authority to enter whatever protective order justice may require, i.e., an order may be entered 'to protect the party from annoyance, expense, embarrassment, or oppression.' In Widmer v. Fort Smith Vehicle and Machinery Corporation, 244 Ark 626, 427 S.W.2d 186 (April 15, 1968), we said:

'The purpose of discovery procedure is to simplify the issues at the actual trial and is not intended to take the place of the actual trial, nor is it intended to relieve the plaintiff of the burden of proving the allegations of his complaint in a civil case.'

In Widmer v. Modern Ford Tractor Sales, 244 Ark. 696, 426 S.W.2d 806 (April 22, 1968), we held that the trial court did not abuse its discretion in quashing appellant's interrogatories, and we are unable to say, in the present instance, that there was any abuse.

Finally, it is urged that the trial court erred in not granting appellant's motion for summary judgment. Mr. Widmer points out that, though he filed an affidavit, no counter-affidavit was filed by appellee.

We cannot pass on the question of whether the summary judgment should have been granted, for this is not an appealable order. In the Kentucky case of Bell v. Harmon, 284 S.W.2d 812, the court rendered a comprehensive discussion on this subject, as follows:

'The Federal courts seem to assume that an order denying a motion for summary judgment is not reviewable because not appealable. (Citing authorities.) Clearly such an order, being interlocutory, is not appealable. See Clay CR 56.03, Comment 7. However, though not independently appealable, certain interlocutory orders are reviewable in conjunction with a final judgment, e.g., an order overruling a motion for a directed verdict; an order granting a new trial. Thus the determination that an order denying summary judgment is not appealable does not necessarily resolve the question of whether such an order may be reviewed when properly presented.

'However, we think sound reasoning supports the conclusion that an order denying summary judgment should not be reviewed on appeal. (In passing it may be noted that an order granting such judgment is a...