Whittaker v. Tracy

41 Ark. 259

• Court: Supreme Court of Arkansas
• Decided: May 15, 1883
• Status: Published

Opinion

OPINION.

It is manifest that if appellant had taken a rule upon Justice Garland to produce the original papers sooner than she did, it would have been fruitless.

It is also clear that the failure to prosecute the appeal with more diligence was the fault of the clerk in misplacing and forgetting the papers, and not the fault or negligence •of appellant or her attorney.

In Smith et al v. Allen, 31 Ark., 268, and Hughes v. Wheat, 32 Ib., 292, relied on by counsel for appellee, the parties taking the appeals were shown to have been negligent in prosecuting them, and hence it was held that their -dismissal was no abuse of discretion.

Upon the final showing in this case, we think the court ■below should have set aside the order dismissing the appeal, ¡and permitted the case to proceed to a trial de novo on its merits.

Note. — This and the next two cases should have heen printed in the; May Term, but were overlooked by the printer. — Rep.

The judgment dismissing the appeal must be reversed, and the cause remanded to the court below for further proceedings.