Watson v. Suddoth

Supreme Court of Arkansas

Watson v. Suddoth

193 S.W.2d 326, 209 Ark. 940, 1946 Ark. LEXIS 509

CourtSupreme Court of Arkansas

DecidedMarch 18, 1946

Docket4-7850

StatusPublished

Cited by1 cases

This text of 193 S.W.2d 326 (Watson v. Suddoth) 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

Watson v. Suddoth, 193 S.W.2d 326, 209 Ark. 940, 1946 Ark. LEXIS 509 (Ark. 1946).

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Opinion

Smith, J.

This is the third appeal of this case. The first appeal was ordered dismissed in an opinion not published in our reports (202 Ark. 1197), but published in 149 S. W. 2d 563, for non-compliance with Rule 9.

It was held in the opinion on the second appeal, 208 Ark. 205,185 S. W. 2d 936, that the decree from which the appeal came would have to be affirmed, for the reason that oral testimony heard at the trial had not been preserved and brought into the record.

The present appeal must also be dismissed for noncompliance with Rule 9, although the decree would be affirmed even though the rule had been complied with, for the reason that the testimony upon which the decree was rendered has not been brought into the record. There appears in the transcript now before us a complaint which alleges that the decree from which the second appeal was prosecuted had been obtained by fraud. There was an answer denying this allegation which pleaded the previous adjudication of the issues which the complaint sought to raise.

There appears also in the present record an ex parte statement in the form of an affidavit, not taken as a deposition consisting of questions and answers. There then follows the decree from which is this appeal, which recites that the cause was heard on oral and documentary evidence, none of which appears in transcript. It was said in the opinion on the second appeal that in the absence of the testimony a conclusive presumption would be indulged that the omitted testimony sustained the finding upon which the decree was based. Here the decree must be affirmed for the same reason, even though Rule 9 had been complied with.

The decree must therefore be affirmed, and it is so ordered.

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Smith, J.

This is the third appeal of this case. The first appeal was ordered dismissed in an opinion not published in our reports (202 Ark. 1197), but published in 149 S. W. 2d 563, for non-compliance with Rule 9.

It was held in the opinion on the second appeal, 208 Ark. 205,185 S. W. 2d 936, that the decree from which the appeal came would have to be affirmed, for the reason that oral testimony heard at the trial had not been preserved and brought into the record.

The present appeal must also be dismissed for noncompliance with Rule 9, although the decree would be affirmed even though the rule had been complied with, for the reason that the testimony upon which the decree was rendered has not been brought into the record. There appears in the transcript now before us a complaint which alleges that the decree from which the second appeal was prosecuted had been obtained by fraud. There was an answer denying this allegation which pleaded the previous adjudication of the issues which the complaint sought to raise.

There appears also in the present record an ex parte statement in the form of an affidavit, not taken as a deposition consisting of questions and answers. There then follows the decree from which is this appeal, which recites that the cause was heard on oral and documentary evidence, none of which appears in transcript. It was said in the opinion on the second appeal that in the absence of the testimony a conclusive presumption would be indulged that the omitted testimony sustained the finding upon which the decree was based. Here the decree must be affirmed for the same reason, even though Rule 9 had been complied with.

The decree must therefore be affirmed, and it is so ordered.

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Bluebook (online)

193 S.W.2d 326, 209 Ark. 940, 1946 Ark. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-suddoth-ark-1946.

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