Cole v. State

222 S.W. 1060, 144 Ark. 533, 1920 Ark. LEXIS 329

• Court: Supreme Court of Arkansas
• Decided: June 21, 1920
• Status: Published

Opinion

Hart, J.

(after stating the facts. It may be stated at the outset that the court has held valid our statute providing for the summary seizure and destruction of intoxicating liquors kept in a prohibited district to be sold contrary to law, and that the act does not contemplate a trial by jury in a proceeding to condemn arjd destroy such liquors. Kirkland v. State, 72 Ark. 171.

It appears from the bill of exceptions that the case was specially set for 8:30 a. m. on November 17, 1919, and that it was heard and determined at that time. It is true that, according to the affidavits of Cole and his attorney, they understood that the case was set at a different hour on that day, but these affidavits were not sufficient to conclusively overcome the recital in the bill of exceptions that the case had been specially set for 8:30 a. m. .

The court overruled Cole’s motion for a new trial because it did not state the facts, and it can not be said that the finding of the court in this respect is without evidence to support it. The case was brought regularly on for trial and was regularly submitted for decision. It is the duty of a litigant to keep himself informed of the progress of his case, and the party seeking relief against a judgment on the ground of unavoidable casualty must show that he himself is not guilty of negligence. Trumbull v. Harris, 114 Ark. 493.

As above stated, the testimony of Cole and his attorney to the effect merely that they understood the case was set for a later hour does not conclusively overcome the recital in the bill of exceptions that the case was specially set for trial at 8:30 a. m.; and it can not be said, therefore, that the judgment of the.court in overruling Cole’s motion for a new trial is not without evidence to support it.

Therefore, the judgment will be affirmed.

Humphreys, J., not participating.