Jett v. Crittenden

116 S.W. 665, 89 Ark. 349, 1909 Ark. LEXIS 83

• Court: Supreme Court of Arkansas
• Decided: February 8, 1909
• Status: Published

Opinions

Hart, J.,

(after stating the facts.) Counsel for appellant insists that the debt secured by the mortgage of March 25, 1905, to O. B. Critténden & Company, lessees of Sunny Side Store, has been settled, and that therefore the court erred in • rendering a decree for the foreclosure of said mortgage and a judgment for the amount found to be due thereunder.

It is impossible to determine the truth or falsity of this contention from the abstract. Rule 9 of the court requires that the appellant shall file an abstract or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts and documents upon which 'he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to the court for decision. This rule has been in force for many years, and was adopted for the purpose of facilitating the work of the court. It is not practicable for each member of the court to take the transcript and explore it to ascertain whether the findings of the chancellor are sustained by the weight of the evidence. In the present case counsel for appellant has failed to set out the substance of the testimony, and has merely stated his conclusion of the effect of it. This is not sufficient. Counsel must make an abridgment of the testimony, and it is then a question for the court to decide upon the effect and weight of the evidence. The following cases are good illustrations of the rule, and' contain a discussion of the proper office of the abstract. Ruble v. Helm, 57 Ark. 304; Neal v. Brandon, 74 Ark. 320; Siloam Springs v. Broyles, 87 Ark. 202.

Counsel for appellant next insists that the wife of appellant neither joined in the execution nor the acknowledgment of the mortgage to Bunker; and that, it being a conveyance affecting the homestead, it is void under section 3713 of Kirby’s Digest.

The record does not show that appellant had a wife at the time of the execution of the mortgage, which was on the 27th day of March, 1906. True, it does show that he -had a wife at the time he made the mortgage to Crittenden & Company on March 25, 1905. That, however, raises no presumption in his favor.

The fact, if it existed, might be set up as a defense to the action, and the burden was upon appellant to establish that he had a wife at the time the Bunker mortgage was executed, and that she did not join in its execution.

There is no controversy as to the amounts due on the mortgage held by Davies and 'that held by Bunker. Therefore, it is ordered that the decree be affirmed.