Smith v. House

Smith, J.

Appellant brought this suit to cancel an oil and gas lease which lie had given appellee. He alleged that the lease was void as being without consideration, and that the lease had forfeited by reason of the failure of the lessee to pay the rent within the time limited by the terms of the lease.

Appellee insisted that the rent had been paid in apt time, but that, if this had not been done, appellant had waived the right to declare a forfeiture. The court held that there had been a waiver of the right to declare a forfeiture, and dismissed the complaint as being without equity.

Upon the issues thus joined the court heard oral testimony, and the decree recites that “said testimony is to be reduced to writing by the stenographer (who was named), and filed as depositions in this cause.” No time was stated, however, in which this might be done.

The chancery court of Ouachita 'County, in which the cause was heard, met quarterly in March, June, September and December, and the cause was heard at the March term of the court.

The stenographer transcribed her stenographic notes and filed the transcription as depositions in the case on September 21, 1923, and on the same date a stipulation of the opposing counsel was filed which reads as follows: “It is agreed by and between the attorney for appellants and the attorney for appellee that the depositions of W. S. Pace, W. A. Smith and J. W. House, Jr., as certified by Nina C. McCormick as stenographer, together with the copy of the leases attached thereto, constitute all the evidence introduced on the trial of said cause.”

Between the March term of the court, when the cause was heard, and the filing of this stipulation, the June term of the court had intervened and had been held.

The majority of the court have therefore concluded that, inasmuch as no time was given for the filing* of the depositions heyond the term of the court at which the testimony was heard and the decision of the court rendered, the depositions were not filed as required by law, and the oral testimony is not therefore properly before us for review, and, this being true, there is a conclusive presumption that this testimony supported the chancellor’s finding* on the questions of fact presented by this testimony. This, in the opinion of the majority, is the effect of the decisions of this court in the cases of McGraw v. Berry, 152 Ark. 452, and Harmon v. Harmon, 152 Ark. 129. The Chief Justice and the writer do not concur in this view.

It follows therefore that the decree of the court below must be affirmed, and it is so ordered.