Southwestern Telegraph & Telephone Co. v. Hill , 140 Ark. 328 ( 1919 )

SMITH, J.

This is the second appeal in this case. Hill v. Southwestern Tel. & Tel. Co., 117 Ark. 104. On this first appeal the opinion was delivered February 15, 1915, and the cause was then remanded for a new trial, and on November 23, 1915, the cause was dismissed by the circuit court on its own motion for want of prosecution.

On the afternoon of December 16, 1915, attorneys for appellee, being at Pine Bluff, called attorney for appellant at Little Rock and asked him to call the court at Texarkana for the purpose of having the order of dismissal set aside. They were told that the said attorney would do this and if he found the court willing the attorney would consent. Repeated efforts to reach the court failed, and the call was carried over to the following day, when appellant’s attorney had a long distance talk with the judge, resulting in the suggestion that if the attorneys would send a signed agreement to the clerk to this effect the case would be reinstated. The court had adjourned on December 17, but this was not known to the attorney for appellant nor to the other parties. The agreement was mailed to the clerk of the court on December 18, and on the authority of this agreement the clerk redocketed the case at the following June term. At the June term the cause was continued.

On November 27, 1916, without notice to the appellant or its attorney, attorneys for appellee filed a motion for a mmc pro tunc order to reinstate the case, and on the same day the motion was granted and the order entered.

On the same day, and in the absence of any one representing the appellant, there was a jury trial and a verdict for $6,300 for the plaintiff. On the following day the court granted the appellant time in which to file pleadings in the case. On December 8,1916, the court granted the appellant a new trial. At the following June term, 1917, the cause was continued on motion of appellant.' On November 27, 1917, there was a jury trial and Verdict for the plaintiff in the sum of $6,000. Motions for a new trial were duly filed and overruled.

On November 25, 1918, the appellant filed its motion to set aside the mmc pro tunc order referred to. On December 11, 1918, the court overruled the motion to set aside said order, and this appeal has been prosecuted to review that action.

Counsel for appellant question the authority of the court to make the mmc pro tunc order upon the ground that the court was not in session at the time the alleged order reinstating the cause was made and insist, therefore, that no subsequent order of the court directing the entry, mmc pro time, of the reinstating order could validate an order which the court could never in the first instance have made, because it was not in session at the time it was made.

(1-2) This may be true, but it does not follow on that account that the court did not reacquire jurisdiction of the cause. We know of no reason why a cause might not he reinstated at one term after having been dismissed at the preceding term where the parties consent to its reinstatement. It is true the conversation in which the consent was given related to the reinstatement of the cause at the term at which it was dismissed, but subsequently thereto appellant voluntarily appeared in the court below, filed pleadings in the cause, obtained a continuance from one term of the court to another, had a default judgment set aside, and finally participated in a trial before a jury, without having raised any question about its presence in court, and it cannot, therefore, now be prejudiced by the nunc pro tunc order showing the jurisdiction of the court "to try the cause, whether that order was properly made or not, because, without reference to it, the court had acquired jurisdiction of the case through the proceedings above mentioned. Judgment affirmed.