Fordyce v. Hardin

Hemingway, J. 1. Presumption as to fifing motion for new All matters relied upon for a reversal , . y r t , , i • f relate to the court s refusal to grant the motion for a new trial. But the appellant is met upon the threshold of the cause with the contention that, as his motion for a new trial was not filed within three days after the verdict was rendered, and the delay does not appear from the record to have been unavoidable, the court was justified in overruling the motion, regardless of the matters presented by it. The court permitted the motion to be filed, and considered it. As the record is silent as to the considerations that controlled the court in permitting the motion to be filed and remain of record, it must be presumed that they were legally sufficient to justify such action, and that it was made to appear that the delay was unavoidable. We do not think a different rule is announced in Nichols v. Shearon, 49 Ark., 75. There the motion was filed in apt time, and, upon an understanding between the parties had in court, it was withdrawn ; afterwards, and more than three days after the verdict had been rendered, the same motion was refiled. The court said it might have been properly overruled because of the delay in filing it; but it was apparent that the delay was not unavoidable from the fact that it had been originally filed in apt time. So we think the points raised by the motion are presented for our consideration. We think the evidence legally sufficient to sustain the verdict, and our inquiry in that matter goes no further. 2. Tax assess-meat as evi•dence of value. The only exception that it seems necessary for us to consider relates to the court’s action in excluding from the evidence the appellee’s assessment list, recently signed and verified by him, in which he returned for taxation “two head of neat cattle” of the aggregate value of ten dollars. As the appellee had testified that the heifer killed was one of the neat cattle assessed, arid had fixed in his testimony á much higher value upon her than that fixed in the assessment list upon both animals, and as the value of the heifer was a fact controverted upon the trial, we think the list was proper evidence to contradict the appellee, and that the court erred in excluding it. Texas R. Co. v. Donnelly, 46 Ark., 87; Chicago R. Co. v. Artery, 137 U. S., 507. 3. Remittitur. But the defendant’s evidence showed that the animal was worth twenty-five dollars, and upon it a verdict for that amount should have been rendered if the appellee’s testimony had been entirely discredited. A remittitur of the amount recovered in excess of twenty-five dollars will therefore cure the error indicated; and for that sum the judgment will be affirmed if the appellee elects to remit the excess. Otherwise the judgment will be reversed, and the cause remanded.