Des Arc Bank & Trust Co. v. Erwin

Supreme Court of Arkansas

Des Arc Bank & Trust Co. v. Erwin

141 S.W. 1181, 101 Ark. 252, 1911 Ark. LEXIS 444

DecidedDecember 11, 1911

StatusPublished

This text of 141 S.W. 1181 (Des Arc Bank & Trust Co. v. Erwin) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Des Arc Bank & Trust Co. v. Erwin, 141 S.W. 1181, 101 Ark. 252, 1911 Ark. LEXIS 444 (Ark. 1911).

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Opinion

McCulloch, C. J.

The decree in this case must be affirmed on account of appellant’s failure to file an abstract of the record in accordance with Rule IX of this court. It appears that appellant instituted the action in the chancery court to foreclose a mortgage on lumber executed to appellant by the firm of Bock, Perkins & Company. Appellee had purchased a lot of the lumber from Bock, Perkins & Company, and used it in the construction of a barn. The answer of appellee tendered four issues: First, that Bock, Perkins & Company were not indebted to appellant in any sum; second, that the lumber purchased by appellee from Bock, Perkins & Company was not embraced in the mortgage; third, that the mortgage was void for the reason that the property had been left in the possession of the mortgagors with power to sell and dispose of same in due course of business; and, fourth, that the sale of the lumber to appellee was made with the knowledge and consent of appellant. On final hearing of the cause the chancellor found that Bock, Perkins & Company were indebted to appellant in a certain sum of money and. that the lumber purchased by appellee was embraced in the mortgage but that the mortgagors were permitted to retain possession of the mortgaged property and to sell same on their own account in the usual course of business and that the sale of the lumber to appellee was made with the knowledge and consent of appellant.

No attempt has been made to abstract the record. None of the pleadings in the case is abstraced, nor any of the testimony except a brief extract from the testimony of two of the witnesses. It is impossible for the court to determine whether the decree was in accordance with the preponderance of the evidence, and the presumption must therefore be indulged that the chancellor was correct in his findings.

Decree affirmed.

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McCulloch, C. J.

The decree in this case must be affirmed on account of appellant’s failure to file an abstract of the record in accordance with Rule IX of this court. It appears that appellant instituted the action in the chancery court to foreclose a mortgage on lumber executed to appellant by the firm of Bock, Perkins & Company. Appellee had purchased a lot of the lumber from Bock, Perkins & Company, and used it in the construction of a barn. The answer of appellee tendered four issues: First, that Bock, Perkins & Company were not indebted to appellant in any sum; second, that the lumber purchased by appellee from Bock, Perkins & Company was not embraced in the mortgage; third, that the mortgage was void for the reason that the property had been left in the possession of the mortgagors with power to sell and dispose of same in due course of business; and, fourth, that the sale of the lumber to appellee was made with the knowledge and consent of appellant. On final hearing of the cause the chancellor found that Bock, Perkins & Company were indebted to appellant in a certain sum of money and. that the lumber purchased by appellee was embraced in the mortgage but that the mortgagors were permitted to retain possession of the mortgaged property and to sell same on their own account in the usual course of business and that the sale of the lumber to appellee was made with the knowledge and consent of appellant.

No attempt has been made to abstract the record. None of the pleadings in the case is abstraced, nor any of the testimony except a brief extract from the testimony of two of the witnesses. It is impossible for the court to determine whether the decree was in accordance with the preponderance of the evidence, and the presumption must therefore be indulged that the chancellor was correct in his findings.

Decree affirmed.

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Bluebook (online)

141 S.W. 1181, 101 Ark. 252, 1911 Ark. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/des-arc-bank-trust-co-v-erwin-ark-1911.