Abernathy v. Etcherson

Kirby, J., (after stating the facts). Waiving the question of whether the allegations of the 'answer do not constitute a negative pregnant admitting the fact of the possession of the lands by the plaintiff, and denying only that it was held by virtue of the deed, as alleged, the court has concluded that the trial court erred in refusing to withdraw the peremptory instruction directing the verdict and ;allow the plaintiff to further develop his case by the introduction of the testimony of witnesses then present in the court room. The record discloses that the court directed the jury to find in favor of the defendants, because of the insufficiency of the evidence to show the ownership of the timber alleged to have been cut or the title to the lands on which the timber was standing or growing, and that plaintiff’s attorney objected to the giving of the instruction stating he was absent from the court room by permission when the instruction was asked, and had no information of it prior to the order sustaining it, and for the further reason that the defendant’s attorney in his opening statement of the case had expressly admitted there was no 'Controversy as to the trespass on the land or the cutting of the timber, but only insofar as there was a dispute between the parties as to the correct boundary line between their lands and offered to prove by witnesses then in the court room before the jury had retired from the box, the ownership and title to the timber 'and land, which the conrt refused him permission to do. The court evidently found the attorney’s statement and objection entitled to some weight, since he offered to withdraw the direction for verdict and allow the plaintiff to take a nonsuit without prejudice, which he declined to do. It is apparent from the record that the case was not developed and the record also shows that plaintiff’s attorney did not produce in the trial, certain testimony relative to the possession and ownership of the lands, from which the timber was taken, because he understood that the possession and ownership was admitted to be in his client by the attorney for the defendant in his opening statement of the case to the jury. The proof relating to the truth of the matter of such admission can not be considered here, the .affidavits not being contained in the bill of exceptions, but only in the record as exhibits to the motion for a new trial. The attorney’s statement .and objection amounted to an offer of the testimony in proof of the facts for want of which the court had given a peremptory instruction directing a verdict and showed evidently that he was misled about the necessity for its introduction, and this without regard to whether there was reasonable cause for his understanding .and action. The conduct of the trial being within the discretion and control of the court, and the witnesses being present, this court has concluded from .all the circumstances that the trial court abused its discretion in not withdrawing the peremptory instruction and permitting the introduction of the further proof by the plaintiff in support of his cause of action. Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146, S. W. 130; Jones v. St. Louis, I. M. & S. Ry. Co., 96 Ark. 366, 131 S. W. 958. For said error, the judgment is reversed and the cause remanded for a new trial.