206 CARTWRIGHT V. BARNETT. [192 . C ' ARTWRIGHT V. BARNETT . . 4-4154 Opinion delivered February 10, 1936. 1... -APPEAL AND ERROR AMENDMENT OF RECORD.—on the circuit clerk's return to a . petition for certiorari, the record . on. appeal will be treated as amended to correspond therewith. • . 2. APPEAL AND El :IBM—MOTION FOR NEW. TRIAL—FILING.—A motion for a new trial ' which was . never filed with the circuit clerk will not be considered on appeal. 3. APPEAL AND ERROR—BYSTANDERS' BILL OF EXCEPTION S.—A bystanders' bill of exceptions will not.be considered by the Supreme Couit on app. eal where it was made up without submission to the trial judge, aria with no opportunity to the opposing party to sUggest corrections. • Appeal -from Clay Circuit ,Court, Western District ; G. E. Keck, Judge ; affirmed. • Action by Morah Cartwright and others against Mrs. Elizabeth Barnett. From an adverse judgment plaintiffs . appeal. . • Edwill W. Pickthorne and E. —L. Holloway, for ap • pellants. . . C:.T:'. 13loodworth, , for appellee. BAKER, 4. ; J. M. Barnett died on July 22, 1934. He left surviVing him Mrs: Elizabeth Barnett, his widow, MrS. Morah Cartwright, a married daughter, and Ora H. Barnett, incompetent, his son. • Barnett bequeathed and deVised to Mrs. Elizabeth Barnett the larger part of his estate. Barnett's children contested the will in , probate court and, losing, appealed to the circuit court. Upon trial in the circuit .court, the jury rendered a verdict "for the will." . From that judgment this matter is here upon appeal. -The appellee, by a motion to dismiss, calls our attention to certain. matters in connection with the transcript. •
ARK.] CARTWRIGHT V.: BARNETT: 207. The motion also asked for a rule. upon the clerk of - the circuit court to bring up certain records. This .part.of the motion may be taken as a writ , of certiorari; and since the , clerk has made the amendments dr corrections and duly certified such records, such certified copies may , be taken • by us as a . resPonse tO the writ, and the record be thereby amended, as imder rule No. A consideration of this motion: disposes of most . of the questions, presented on appeal. .One: of the prop,osi-tions submitted by the motion to . dismiss is the statement :that there is no bill . of exceptions,. and a, second is that there is no. Motion for a new trial, , and a third , is that • the 'transcript of • the , judgment is incoirectly set' fOrth in the record and abstract. The purported bill of 'exceptions 'Presented 'here has no approval of the trial judge.' It : is not-•the' wOrk of the official court reporter, but it purport& to be a record .df the . trial to which is attached an affidavit that was -Subscribed and-sworn to by three persons on the second day of October, 1935, before a justice- of the peace. The .case was..tried on the 4th day. of April, 1935. • • 'The Purported motion for a new trial' is a Carboh :Copy of the : typewritten sheet, inserted in the recOrd-.: . It has' a filing .-mark upon • it Us of the 3d day-Of -May,-.1935, which was twenty-nine• days after , the: date of , the.trial. There.is a typewritten . notation on the margin: indicating that the labeled motion for new trial was overruled . on that date. Following thiS marginal notation is the trial judge's name' in typeWriting. • We cannot tell, although it is intyp • e . w .• r • iting, whether the time fixed for bill of eXceptiOns iS 1.20 'days' or 180 days. The purported bill* of eX'ceptions shOws that it was signed by the parties , who sWore to it on OdOber 2d. If it had . been 'filed on that'day, and 'the time fiked had been 180 days,- it would have been mit* of' time; although it seems not to have been filed at All:• Prom the response of the 'clerk we' find that no.copy, or:an original was left • in his office at any time, either of • the. so-eallOd motion for a new trial,, or the, bill -of exceptions. There is , no kind ,of -evidence-by certification or otherwise , that the trial judge. ever acted upon.or signed -either, of those
208 CARTWRIGHT V. BARNETT. [192 instruments, or by any order made them part of the record. - Appellant seems to have misconceived the office of a bystanders' bill of exceptions: Section 1322, 'Crawford & Moses' Digest, is - authority for this now almost unused instrument. By this provision it was intended that a party 'excepting might by calling bystanders, insert his statement or proposition into the record. This might be done, even against the will of the trial judge. The op- • posing party could in like manner controvert such matters so introduced. The statute, therefore, contemplates that notice be given in order that the opportunity may be had to file such controverting affidavits. Here the whale record was made up without regard, or submission to the trial judge with no opportunity to the opposing party to suggest any correction. This was wrong. See Cox v. Cooley, 88 Ark. 350, 114 S. W. 929; Southern Improvement Co. v. Road Improvement Dist. No. 5, 168 Ark. 893 272 S. W. 684. We cannot and do not consider it. Engles v. Okla. Oil & Gas Co., 163 Ark. 270, 259 S. W. 749; Petroleum Producers Asen v. First Nat. Bank of Van Buren, 165 Ark. 267, 263 S. W. 965; L...D..Powell v. Stockard, 170 Ark. 424, 279 S. W..1001. Without motion for new trial and bill of exceptions only the judgment may be considered. See authority - Stone v. Bowling, 191 Ark. 671;87 S. W. .(2d) 49. The appeal was lodged on the last day on which it could have been filed. The judgment of the circuit coUrt, as presented here by appellant, was ,rendered upon a verdict, which, copied in the face of the judgment, shows that it was signed by ouly eight jurors. If the verdict of the jurors, with their signatures, was correctly copied, the . ,verdict and consequent judgment would be of no effect. Amendment No. 16 to our , Constitution makes provision for verdicts to be rendered "where as manY as nine of the jurors agree lipoh the verdict, the verdict so agreed upon shall be returned a8 the verdict of such jury, provided, however, that where -a verdict was rendered by
ARK.] 209 less than twelve jurors, all of the jurors consenting to such 'verdict 'shall sign same." The motion of the appellee ' to dismiss this appeal, treated as a. certiorari, brings up the original verdict. This shows that it was a proper verdict signed by nine of tbe jurors, not merely eight. • So the only alieged error presented is one wholly without merit. The judgment is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.