Shorter University v. Franklin

88 S.W. 587, 75 Ark. 571, 1905 Ark. LEXIS 648

• Court: Supreme Court of Arkansas
• Decided: June 10, 1905
• Status: Published

Opinions

Hiee, C. J.

This is a cause originating in justice of the peace court, and, after trial on appeal in circuit court, is brought here. The contest seems to have been whether a grocery bill of $54.95 was properly charged to Shorter University or to one W. C. Cox, the manager of the boarding department of the university. The appellant has wholly failed to set 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,” as required by Rule IX. None of the instructions are set out, and therefore the court must assume that the jury was correctly instructed. Koch v. Kimberling, 55 Ark. 547; Carpenter v. Hammer, ante, p. 347.

""The appellant contends that there is no proof to show that Shorter University agreed or undertook to pay this bill, and then says: “By reference to the testimony of T. H. Jackson (see Tr. p. 59) and the testimony of J. W. Walker (see Tr. p. 67), etc., it is conclusively shown,” etc. This is what Mr. Justice Mansfield described in this language:’ “And content themselves with a mere reference to it (the testimony) by way of insisting upon its insufficiency.” The court added: “The rules of practice do not make it our duty to explore the transcript for the evidence thus omitted.” Ruble v. Helm, 57 Ark. 304. To properly understand the case, each of the five judges of this court would have to take turn about in exploring the transcript to discover the facts of the case. The rule was promulgated twenty years ago to obviate that slow and tedious method of trial in this court. For a recent discussion of the proper office of the abstract and transcript, reference is made to Neal v. Brandon, 74 Ark. 320.

The judgment seems to have been first rendered against T. H. Jackson as superintendent of Shorter University, and after-wards, on motion, which was resisted, amended so as to be rendered against the corporation. It was in the province of the circuit court to amend its record, and, in the absence of evidence showing error, it will be presumed to be correct. The appellee has set forth the substance of some of the evidence, and from it and the appellant’s argument of its force it appears that the circuit court arrived at the right conclusion in the case.

The judgment is affirmed.

Opinion delivered July 22, 1905. John Barrow, for appellant.

The circuit court had no jurisdiction, and it was error to permit a substitution of new parties after judgment. 59 Ark. 583; 39 Ark. 347; 28 Ark. 261; 32 Ark. 17; 5 Ark. 517; 62 Ark. 144. Appellees failed to establish a cause of action against appellant. 62 Ark. 33; 2 Am. & Eng. Enc. Law, 855. The acts of its officers are not binding upon the corporations, unless they are within the scope of their powers. 21 Ark. 302; 23 Ark. 300; 70 Ark. 232.

Maloney & Maloney, for appellees.

An appearance waives any defect or want of service. 35 Ark. 95, 109; 25 Ark. 164; 33 Ark. 107; 14 Ark. 225; 38 Ark. 102; 48 Ark. 151; 56 Ark. 45; 58 Ark. 181. Any substantive acts of counsel constitute an appearance. 35 Ark. 276; 45 Ark. 545. There was evidence to support the verdict of the jury. 57 'Ark. 577; 31 Ark. 163; 25 Ark. 476.