Severs v. Northern Trust Co.

Lewis, J. The question in this case arises under sections 1036 and 1037 of Mansfield’s Digest of the Laws of Arkansas. We are confronted with the preliminary inquiry whether the record is presented to us in such a way as to [6] enable us to review the action of the trial court in refusing to dismiss the case below. This action, though excepted to, was not preserved for review by bill of exceptions, nor was a motion for new trial made. It has been decided by the supreme court of Arkansas ( whose decisions in the construction of statutes put in force in this jurisdiction are most persuasive, if not, indeed, conclusive, with us ) that an error in law in the rendition of a judgment, perceptible from the record, without any reference to the proceedings on the trial as shown by the bill of .exceptions, does not require a motion for new trial. Percival vs. Platt, 36 Ark. 461. What constitutes the record ? Mr. Thompson, in his work on Trials (volume 2, § 2771 ), says : ‘1 The record proper ordinarily embraces the original writ, the pleadings, and the entry of verdict and judgment. If error is exhibited on the face of the record proper, it may be corrected in a court of error, unless there are statutes changing the common-law rule, without the necessity of a bill of exceptions. Whenever it is desired to present for review, in an appellate court, a ruling of the trial court, which does not appear upon the face of the record proper, an exception must be taken to the ruling at the time when it was made, and a bill of exceptions must be drawn up, embodying a statement of the ruling, and showing that an exception thereto was reserved at the time when the ruling was made. ’ ’ The Arkansas decisions support the above definition of the “record.” Lenox vs. Pike, 2 Ark. 14. See, also, Bateson vs. Clark, 37 Mo. 31. Whenever it is necessary to preserve, by a bill of exceptions, the ruling of the trial court, to secure a review thereof on appeal, it is necessary that a motion for new trial should be made in the court below. Dunnington vs. Frick Co. (Ark.) 30 S. W. 212. Motion for new trial, when unnecessary. Record, what constitutes. In the case under consideration, the fact of the plaintiff’s nonresidence appears in its pleadings, and is therefore apparent upon the face of the record. The fact [7] that a bond was not filed is not shown. Both these facts must concur to authorize the dismissal of the suit. Johnson vs. Hoskins, 12 Ark. 635. In the recitals of the judgment, there are statements from which it may be clearly inferred that a bond for costs was not filed in the court below, but these statements are not properly a part of the judgment. A judgment, by the Arkansas Code, is “ a final determination of the rights of the parties in an action. ” The reasons announced by the court to sustain its decision constitute no part of the judgment, and do not become such by reason of the fact that the clerk may énter them upon the minutes. Such matters are properly presented for review by bill of exceptions only. Freem. Judg. §§ 2, 79; 2 Thomp. Trials, §§ 2781, 2773, 2776 ; Elliott, App. Proc. 814, 815. In the case of Hall vs. Bonville, 36 Ark. 495, the court said: “It is true that in the judgment entry there is a statement of the evidence introduced on the trial or agreed on, and of the declaration of the law of the case made by the court; but it is the province of the bill of exceptions, and not of the judgment entry, to bring on the record facts proven or admitted on the trial, and the declarations of law made by the court upon them. ” This must be a correct statement of the law ; otherwise, a judgment might become the vehicle for presenting upon appeal any ruling of the trial court at any stage of the trial. ‘ ‘ Nothing can be made a matter of record by calling it by that name, nor by inserting it among the proper matters of record. ” Freem. Judgm. § 78. Recital 1 n judgment, no bond for costs Insufficient. Reason for decision oí court not a part oí judgment. Appellants, in their brief, cite us to the eases of Smith vs. Hollis, 46 Ark. 21; Union Co. vs. Smith, 34 Ark. 684; Gates vs. School Dist., 57 Ark. 374, 21 S. W. 1060. In the first case, the distinction we have made is clearly drawn, and the court limited itself to the determination of the question'whether the judgment followed the special findings of the trial court, the special findings being treated like the verdict of a jury, as a part of the record proper. In Gates [8] vs. School Dist. the question was whether the judgment followed the facts as found in the jury’s special verdict, which, as we have seen, is a part of the record proper. In Union Co. vs. Smith it was held from certain recitals of the fact in the judgment, without a bill of exceptions, that there was error therein. The report of this case does not enable us to determine whether these recitals were necessary to the proper entry of the judgment, and we assume that they were. If they were not, but were simply matters of evidence imported into the judgment at the option of the counsel, to preserve the question upon appeal, without the aid of a bill of exceptions, then we hold this case to be in conflict with other decisions of the supreme court of Arkansas, against the weight of reason and authority, and decline to follow it. Because the action of the trial court in the particulars complained of is not presented in such mode as authorizes this court to determine the same, the judgment of the court below is affirmed.