Sinclair Refining Co. v. Burkholder , 193 Ark. 62 ( 1936 )

Appellees, Mrs. Ada Burkholder and others by written motion move this court to strike the order overruling the motion for new trial, the order granting time in which to prepare and file a bill of exceptions, and the order granting appellant an appeal to this court, because not made in conformity to law.

The pertinent facts necessary to a decision of the questions presented are: By express agreement between Judge KINCANNON of the 15th judicial circuit and Judge WOOD of the 12th judicial circuit, exchange of circuits was affected for the purpose of trial and determination of the above numbered and entitled cause. The exchange was consummated and Judge WOOD presided over the Logan circuit court during the trial of said cause which ended on April 2, 1936, by the entry of a final judgment. For cause not disclosed, Judge Wood caused to be entered in the Logan circuit court on April 2, 1936, an order allowing appellant 10 days in which to prepare and file a motion for new trial. On April 8, 1936, appellant's counsel appeared in the circuit court of Scott county at Waldron, and procured the following order which is the basis of this attack:

"In the Logan Circuit Court, Southern District

"H. A. Tatum, et al. .................. Plaintiffs, v. No. 1981 Sinclair Refining Company ............. Defendant. _______________

Providence Washington Insurance Company ........................... Plaintiff, v. No. 1989 Sinclair Refining Company ............. Defendant. _______________

Sentinel Fire Insurance Company ....... Plaintiff, v. No. 1992 Sinclair Refining Company ............. Defendant. _______________

"Consolidated Cause No. 1981 _______________

"On this 8th day of April, 1936, at Waldron, Arkansas, is presented the attached motion of the defendant, Sinclair Refining Company, for a new trial, the plaintiff and the defendant being present by their respective attorneys of record. And, being well and sufficiently advised in the premises, the court doth overrule the motion, to which action of the court the defendant at the time excepted, and asked that its exceptions be noted, which is hereby done. And thereupon the defendant prayed an appeal to the Supreme Court, which is granted, and a period of ninety days is granted to the defendant within which to prepare, present and file a bill of exceptions herein.

"(Signed) J. Sam Wood, "Judge on Exchange."

The bill of exceptions on file in this cause, and the appeal lodged here are predicated upon the above quoted order.

The above quoted Scott county circuit court order is null and void upon its face; therefore, there is no proper bill of exceptions and appeal properly lodged in this court, and the motion to strike must be sustained. The quoted order shows upon its face that it was made and entered by the Scott circuit court while in session at Waldron in Scott county, and not in the Logan circuit court where the judgment sought to be appealed from was made and entered. This action of the Scott circuit court was coram non judice and void under repeated opinions of this court. Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Chaplin v. Holmes, 27 Ark. 414; Graham v. Parham, 32 Ark. 676; Neal v. Shinn, 49 Ark. 227,4 S.W. 771; Williams v. Reutzel, 60 Ark. 155, 29 S.W. 374; Belford v. State, 96 Ark. 274, 131 S.W. 953; and Mell v. State, 133 Ark. 197, 202 S.W. 33, L.R.A. 1918D, 480.

But it is earnestly insisted that we should treat the order made by the Scott circuit court as one made by the judge in vacation who presided in the trial of the cause in the Logan circuit court, and 1314 of Crawford Moses' Digest is cited in support of this contention.

Prior to 1909 the law in respect to the disposition of motions for new trials in inferior courts of this state was embodied in 6218 of Kirby's Digest. It provides: "The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause mentioned in subdivision seven of 6215, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented."

By act 291 of 1909, 6218 of Kirby's Digest was amended, and the amended act now appears as 1314 of Crawford Moses' Digest. It reads as follows:

"The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause mentioned in subdivision seven of 1311, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented; provided that where the verdict or decision is rendered within three days of the expiration or adjournment of the term, a motion for a new trial, with an alternative prayer for appeal to the Supreme Court in case said motion be overruled, may be presented, upon reasonable notice to the opposing party or his attorney of record, to the judge or chancellor, or his successor in office, of the district in which said verdict or decision was rendered, wherever he may be found, at any time within thirty days from the date of the verdict or decision, and such judge or chancellor shall pass upon said motion, and indorse his ruling thereon, upon the back of the motion, either granting the motion or overruling same; and if said motion be overruled he shall also indorse upon said motion, his order granting an appeal to the Supreme Court, and his further order specifying a reasonable time allowed in said cause for filing a bill of exceptions. Upon filing such motion and the judge's order thereon, with the clerk of the court where the cause is pending it shall become a part of the records and files of the cause, and shall have the same legal force, and effect as if same had been filed in term time, as now provided by law."

It must be conceded that prior to the amendatory act of 1909 the only statutory method of procuring determination of motions for new trials in inferior courts of the State was in the court — not the judge of such court — in which the judgment was entered.

The plain and unmistakable legislative intent as evinced by the amendatory act of 1909 was to afford to aggrieved parties an additional method of procuring determination of motions for new trials — that is to say by the judge in vacation — but this privilege so afforded was expressly conditioned and restricted to such cases as were determined by the trial court during the last three days of the term.

Neither the Logan circuit court order of April 2, 1936, extending the time for filing the motion for new trial, nor the Scott circuit court order of April 8, 1936, reflects that the condition imposed by the act of 1909 — namely, that the judgment was entered within three days of the end of the term of court — ever arose. Indeed, the Scott circuit court order made and entered as aforesaid expressly negatives and contradicts any such idea. It says upon its face that the motion is overruled by the "court," and that exceptions were reserved to the action of the "court" in so doing.

It has been repeatedly held and consistently adhered to by this court that bills of exceptions when properly authenticated, and when approved by the trial courts connote absolute verity. Hays v. Kirby, 83 Ark. 367,103 S.W. 1152; Grayson-McLeod Lbr. Co. v. Johnson,103 Ark. 266, 146 S.W. 141. No good reason is apparent why the same rule should not apply to court orders upon which such bills of exceptions rest. Compare Powhatan Zinc Lead Mining Co. v. Hill, 98 Ark. 519, 136 S.W. 669.

If this be true, and its logic must be conceded, then the Scott circuit court order overruling the motion for new trial, and granting 90 days in which to prepare and file a bill of exceptions imports verity and cannot be contradicted, amended or construed to mean something which its language does not import.

If the conclusions heretofore stated be assailed as technical we reply that the methods and means of perfecting appeals to this court rest with the legislative branch of the State government.

Prior to 1909, aggrieved parties wishing to appeal to this court had but one statutory forum in which to lay the necessary foundation for such appeals and reviews. By act 291 of 1909 an additional forum was provided, namely, the judge in vacation, but upon the express condition that the judge could act only in cases determined during the last three days of the term. It is fundamental that one who invokes the aid of a statute must comply with its concomitant conditions.

But it is argued that we should assume that this judgment was entered in the Logan circuit court during the last three days of its term. Why would we assume a thing as true which is admittedly and demonstrably false? The record does not reflect that this judgment was entered during the last three days of the term, and the order itself is a court direction and bears no "earmark" of a judge's vacation order. Presumptions that contradict the record proper cannot and should not prevail.

It follows that the motion to strike must be sustained, and it is so ordered.

SMITH and McHANEY, JJ., dissent.