Baxley v. Watson

WOOD, J., (after stating the facts). (1-2) There is no error in the ruling of the court. The judgment of June 3,1918, became final upon the adjournment for that term, and the conrt had no further control or jurisdiction over it except by nunc pro tunc proceedings to make thé record speak the truth, or to modify or vacate the judgment or grant a new trial upon statutory grounds. Sections 4431 and 6220, Kirby’s Digest. The court exercising its jurisdiction to modify and vacate judgments erroneously set aside the judgment of June 3, 1918. But the court re-entered this judgment, and from this judgment of re-entry is this appeal. There is no bill of exceptions, and therefore no showing by the appellant that the court erred in re-entering the judgment of June 3, 1918, which it had previously set aside. (3) The burden was upon appellant to show that the court erred in re-entering the judgment of June 3, 1918. See Incorporated Town of Corning v. Thompson, 113 Ark. 237, and other cases cited in appellee’s brief. (4) Moreover, even if this could be treated as an appeal from a trial had and judgment entered on the issues joined for the first time October 8, 1918, still that judgment could not be reversed for several reasons. No errors appears on the face of the judgment. In the absence of a bill of exceptions identifying and bringing into this record the evidence upon which the court based its findings, we must presume that every fact necessary to sustain the finding and judgment of the court was established by the evidence. Knights of Pythias v. Bond, 109 Ark. 543. (5) Even if the record showed' that the motion for new trial was filed, passed upon, and overruled (which it does not) still, in all cases except where the face of the record shows error a bill of exceptions as well as a motion for new trial is necessary. The latter does not take the place of the former. DeQueen S Eastern Rd. Co. v. Pigue, 135 Ark. 499, and cases cited. The judgment is, therefore, affirmed.