Cone v. Bloomer

McCulloch, J. This is an appeal from an order of the chancery court of Chicot County directing the entry of a decree of the court as of the preceding term. The decree was entered in a cause wherein appellants were plaintiffs seeking to foreclose a mortgage executed to them by appellees on certain lands, the sum of $1,798.50 being alleged in the complaint to be the balance due on the mortgage debt. The decree entered by the court was in favor of the plaintiffs, but only for the sum of $125. The complaint was filed on February 3, 1906, the answer of the defendants was filed during the April term, 1906, and the cause was then continued to the next November term. The record entries show that at the November term the plaintiffs filed ' a motion to suppress depositions taken by the defendants, and at the April term, 1907, the order was made directing the entry of the final decree as of the November term, 1906. . .,. The regular chancellor, Hon. James C. Norman, was disqualified by reason of having been of counsel in the case, and at ¿the November term, .1906, Hon. E. O. Mahoney, chancellor of the 7th chancery district, held the court by exchange of districts on adjourned days of the term. At the April, term, 1907, Hon. R. A. Buckner was elected as special chancellor to hear this case, and he was presiding when the order appealed from was entered directing the entry of the decree alleged to have been rendered by the court while Judge Mahoney was presiding. The motion of appellees for the nunc pro tunc entry was filed on April 10, 1907, and was heard and granted on the same day. Appellants filed their response, denying that any final decree had been pronounced by the court. They also filed their motion for a postponement in order to give them time to procure the testimony of Judge Mahoney, and alleged therein that they could prove by him that he had not as chancellor rendered any decree in the case. The court overruled the motion, and proceeded to hear the motion of appellees, with the result already stated. We think the special chancellor erred to the prejudice of appellants in refusing to give them time to procure the testimony of Judge Mahoney. The motion of appellees was heard on the same day on which it was filed. Appellants had no previous notice of the intention of appellees to ask for an entry of the decree alleged to have been rendered at the former term, and had no opportunity to procure the testimony of witnesses. It is obvious that Judge Mahoney could testify directly upon the disputed question whether or not he had pronounced the alleged decree, and his testimony would necessarily have much persuasive force with the court in determining that question. In the interest of a complete and thorough elucidation of that question of fact, an opportunity should have been given to procure this important testimony. Appellants were guilty of no lack of diligence in procuring the testimony, for Judge Mahoney resided in a distant part of the State, and, as we have already said, appellants had no previous notice of the effort to have the decree entered. The matter of granting or refusing continuances is one largely in the' discretion of trial courts. This court will not disturb the exercise of that discretion unless there has been an abuse of it. But when it affirmatively appears .that the discretion has not been properly exercised] it becomes our duty to correct the abuse. St. Louis, I. M. & S. Ry. Co. v. Powers, 67 Ark. 142. It appears from statements contained in the bill of exceptions certified by the learned special chancellor that he proceeded upon the theory that in determining the question before him he should consider only the memorandum found upon the chancellor’s docket, indicating that a decree had been rendered at the preceding term. This was wrong, and it doubtless led him into the error of refusing the continuance. This also emphasized the propriety of having the testimony of th'e chancellor, who held the preceding term, and who could undoubtedly throw much light on the disputed question whether he had in fact pronounced a decree. The minutes or memoranda found on the chancellor’s docket were not conclusive evidence that a decree had been rendered. Reversed and remanded for further proceeding.