Wilkerson v. Fudge

1 S.W.2d 801, 176 Ark. 11, 1928 Ark. LEXIS 646

• Court: Supreme Court of Arkansas
• Decided: January 23, 1928
• Status: Published

Opinion

McHaney, J.

This is an appeal from a judgment against appellant, holding him jointly liable with S. S. Wilkerson and Robert Wilkerson on a promissory note for $411 in favor of ¡appellees. Counsel for appellees have filed a motion to affirm the case for failure to comply with Rule 9 of this court, in that' appellant failed to abstract the pleadings, the evidence, the instructions, the judgment of the court, the motion for a new trial, if one was filed, and the order overruling-it, if one was made. The abstract and brief as originally filed on behalf of appellant failed to comply with said rule in the above particulars, and, after counsel for appellees had filed his brief urging an affirmance on this account, appellant applied to and obtained leave of this court to comply with said rule. He thereafter filed an amended abstract, setting out the instructions of the court., and interlined in his statement of facts page references to the transcript.

Ten witnesses testified in the case, but this evidence is not abstracted. Appellant contents, himself by a statement of what he conceives the facts to be, but does not set out the substance of each witness’ testimony. He does not abstract the judgment of the court, nor the motion for a new trial, if one, and the order overruling it, if one, and we cannot tell, without an examination of the record, whether there was a motion for a new trial, and, if so, whether the errors complained of were assigned in the motion for a new trial.

Under this state of facts we feel that we will have to sustain the motion to affirm for the noncompliance with this rule. The judgment is therefore affirmed.