Tomlin v. Reynolds Mining Corp.

Ed. F. McFaddin, Associate Justice. This is an appeal from the order of the Chancery Court refusing a new trial. The claimed ground for the new trial was: “Accident or surprise which ordinary prudence could not have guarded against” (being the third cause stated in § 27-1901 Ark. Stats.). Appellants say that the accident was the inability to obtain the transcribed testimony of the witnesses. A decree adverse to the appellants was rendered by the Sebastian Chancery Court, Greenwood District, on December 17, 1958. Notice of appeal1 was filed in the Chancery Court on January 7, 1959, and the entire record was designated. By a series of orders the appellants were given until July 17, 1959 to file the transcript of all the testimony; but on March 18, 1959 it became established that such transcript could not be furnished. The regular Chancery Court Reporter, Mr. Batchelor, was in the hospital when the witnesses testified on December 17th, and Mr. Smith acted as substitute Reporter. Unknown to all, and for some unexplained reason, the machine used for taking the testimony of the witnesses was not working properly; and thus it became impossible to transcribe to the pages the record from the machine. This fact was definitely determined on March 18, 1959 when Mr. Batchelor advised the attorney for the appellants: “The girl who does my typing was able to get the first 22 pages, ... I feel that there are some additional parts of the transcript that we could transcribe, but that there is at least 75% that we will be unable to transcribe. Do you want us to transcribe the parts we can and then try to stipulate2 on the parts that cannot be transcribed; and if this is done, it will be very sketchy and probably won’t be of much aid in either determining what exhibits were introduced or what the testimony was . . .” On April 17, 1959 appellants filed in the Chancery Court their unverified motion for new trial, alleging the facts substantially as hereinbefore stated, and also saying: “The issues in the case involve a direct controversy between interested witnesses. The exact testimony given by each witness is extremely important in the proper determination of the issues and at this late date it is impossible to accurately stipulate the testimony given. The failure to have a proper transcript on the appeal to the Supreme Court of Arkansas constitutes an accident which the defendants exercising ordinary prudence could not have guarded against.” This motion for new trial was heard3 by the Chancery Court on July 14, 1959 and on that date was denied; and from that order there is this' appeal. The Chancery Court made the following findings in denying the motion for new trial: “That said defendants have failed to comply with the provisions of Arkansas Statutes 1947 § 27-2127.11 . . . “That said defendants received notice of the state of the record herein on March 18, 1959, one month and 2 days prior to the expiration of the term in which said cause was heard and a decision handed down; but said defendants failed to have said motion for new trial heard until July 14, 1959, three days prior to the expiration of the 7 months maximum time that can be granted for filing the record with the Supreme Court of Arkansas . . . “That to grant a new trial in this matter at this time, with said defendants having failed to comply with Arkansas Statutes 1947, Sec. 27-2127.11 and said defendants having no new evidence to present in this matter, presenting only a fact question, would result in unreasonable delay in this matter, and additional expense and inconvenience to the plaintiff and other defendants in this action, which, under the circumstances, would make it inequitable.” The question before us is whether the Chancery Court abused its discretion in denying the motion for new trial. A lengthy dissertation could be written on this matter of new trial because of the loss of the transcribed testimony. We have at least three cases in Arkansas involving such a situation, and being: Dent v. Peoples Bank, 114 Ark. 261, 169 S. W. 821; Criner v. Criner, 217 Ark. 722, 233 S. W. 2d 393; and Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481. There are many cases from other jurisdictions: we list only a few. Flickett v. Rauch, 31 Cal. 2d 110, 187 P. 2d 402; Weisbecker v. Weisbecker, 71 Cal. App. 2d 141, 161 P. 2d 990; Rambo v. Rambo, 84 Cal. App. 2d 632, 191 P. 2d 480; Duarte v. Rivers, 90 Cal. App. 2d 152, 202 P. 2d 612; Hoffart v. Lindquist £ Paget Mtg. Co., 182 Or. 611, 189 P. 2d 592; King v. King, 119 Ind. App. 46, 82 N. E. 2d 527; Brooks v. National Shawmut Bank, 323 Mass. 677, 84 N. E. 2d 318; People v. Kaplan, 278 App. Div. 665, 102 N. Y. S. 2d 714; Dudley v. Hull, 105 Conn. 710, 136 A. 575; Coan v. Plaza Equity Elevator Co., 60 N. D. 51, 232 N. W. 298; and Reynolds v. Romano, 96 Vt. 222, 118 A. 810. To these may be added the other cases cited in the annotations on “Inability to perfect record for appeal as ground for new trial”, as contained in 13 A. L. R. 102; 16 A. L. R. 1158; and 107 A. L. R. 603. We do not discuss the requirements of § 27-1901 et seq. Ark. Stats, on the necessity of presenting during the term an unverified motion for new trial and the necessity that a motion for new trial be verified when considered after the lapse of the term; because in Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481, we pointed ont the correct way in which appellants could undertake to supply a record which otherwise could not be furnished. In that case, as here, the reporter’s mechanical device for recording the evidence was out of order so that the testimony could not be transcribed, and we said: “. . . but the statute provides a method for supplying the deficiency in a situation like this (Ark. Stats. 1947 § 27-2127.11). These appellants have not availed themselves of the corrective procedure”. The Statute referred to4 above is Section 19 of Act No. 555 of 1953, which reads: Appeals When no Stenographic Report Was Made. In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.” The appellants did not prepare a statement of the evidence of the proceedings, and serve it on the appellee, and proceed as provided in the above section; therefore the appellants are not in a position to say that the Chancery Court abused its discretion in denying the motion for new trial in the case at bar. Affirmed. Holt and Ward, JJ., dissents. Footnotes [1] The case involved the question of whether there was a constructive trust or an express trust. The appeal from the decree of December 17, 1958, has never been filed in this Court. The appeal here involved is from the order of July 14, 1959 refusing a new trial. [2] So far as the record discloses there was no attempt made to stipulate. [3] The terms of the Sebastian Chancery Court, Greenwood District, are fixed by law (§ 22-406 Ark. Stats.) to be the third Monday in April and October. Thus the trial in December 1958 was in the October 1958 term, and this motion for new trial was not heard by the Court until a day in the succeeding April 1959 term. [4] This Section 19 of our Act 555 of 1953 is a verbatim, copy of Rule 75(n) of the Federal Rules; and an interesting case in which the section was unsuccessfully invoked is that of Hawkins v. Mo. Pac. (8th Cir.), 188 F. 2d 348.