ARK.] THOMAS V. ARNOLD. 1127 • THOMAS V. ARNOLD. • 4-4376 Opinion delivered October 12, 1936. 1. APPEAL AND ERFiOR.—The granting of a new trial rests in the sound discretion of the trial court, and the Supreme Court will not reverse his decision thereon, except for a manifest abuse of such discretion. 2. JUD GMENTS— CONTINUANCE.—Where defendant made no effort in advance to make a showing for continuance because of illness, and when granted permission therefor, it required several hours to do so, and in the meantime the case had been heard and determined, the denial of a motion for a new trial on that account is within the court's discretion ; and, since no diligence • was shown by defendant, the trial court's decision will n6t be reversed as an abuse of his discretion. 3. JUDGMENTS—MOTION TO VACATE.—Where defendant, against whom a default jUdgment had been rendered, moved four months later
1128 THOMAS V. ARNOLD'. . [192 to vacate it because of fraud _in 'its • procurement,: allegihg .a..valid defense to the cause of , action which was . denied, and no iproof was offered to sustain' the motion, and p' laintiff testified ihat the Mite on which the action Was 13a. ed was given f 9 r'service ien-dered in . securing evidence for ; defehdarit'' in . ' anothei 'ca's'e; re-. fusal to .vacate ' was .held not . error.. Crawford & Moses' Dig., • , • Appeid frOni"FulaSki Cncuit COfirt, *T , hird Divigiou; J.' S . uwg,' judge ;• affirmed. A , , aioh bY 'W. , 1-1. Arnold 'aga , in • s t . . ,S • . , B •. . • • Thomas. PrOM a judgtheUt in , •f avor i .of ,. plaintiff defendant 'appealed. . ,W. T. Pote, Jr., for appellant....• .J oe . 13: Norbury and. Tom.W. Canipbell, for aPpellee. • '111cHANEY, ApPellee 'sued 'appellant On a Promissory note for $1,500,.dated April' 12, : 19'34, due One year after date with interest from-date at 6 percent . . Appellant 'answered denying all the material'allegationS of the complaint; . but' Without setting• up . *any : affirthative' , ' de-leng e. • The . case was set for trial . for October . 80; I935' ;'at which time appellant made-defalilt. • *A , jury was' empaneled, evidence heard; , aild a . verdict rendered , 'for . appel-lee on the instruction of the court so to do, upon which judgment was entered. Within apt time a motion for a new trial was filed in which it was alleged that the court was advised on the dWof 'trial by 'counsel that appellant was ill, and unable to attend court and that permission was granted counsel to ha.ve his client examined by a physician'te'ascertaiwhis 'obilditiOn;'that While he was absent •getting an examination . :made,,the case was heard .and determined in his. absence r that he . secured.,a certificate from . a physician • to' the‘'effeet 'appellant' was too ill to attend court, which , was filed . with hia Motion for hew trial. . OD February 28, 1936,.b permission of the court, appellant , filed, an„ amendment . ..to his motion in which he . alleged -he had:'a-meritorious , defense . to the action on . the note in. that , the .: note . was' secured-by ap-pellee. , through the fraudulentreprOsentation that . he . was a lawyer and that appellant thought the note was 'given for : legal services, when;dn . fact„appellee was not a.lawyer ao, that he was only indebted.to 'him for services in
Aft:K.1 THOMAS V. ARNOE . D. 1129 securing-. evidence ., whieh •was used in : the trial of .his case._ •,.. Appellee responded , denying . ' all . the grormds set up-in both . the -motion . and the amendment thereto. • A hearing was had • on the motion at which• the physician making • the affidavit . aboVe referred to and Mrs. Ben Yortn a. ,' keeper iof the hothl where appellant -was 'living, testified' to his physical' eondition on the date . of the trial; October 30, 1935: • The-phYSician : :made his examination about 1 :00 P. m: . on said •date and thought af that . tiMe ap:- pellantwas too •ill to attend . 'court.. He was not appellant's 'regular 'physiCian and examined him on said date to 'deterinine his condition . ; 'According to -Mrs. Young, aPpellant :had not conSulted: a physiCian . Or-been' previ-onsly treated 'by- one 'cluring his . .stay at :her , hotel. • .The'Court eVertilled theMotiön for 'a new- trial and the' aniendifient 'and thiS . appeal follOwed. • • - • As statectby couhset . for . appell'ant':- "The Onl ).,- qUO-tion'invOlved appeal.i's theptoper o . ercise of the dicretioli of 'the coult in' the. trial of 'this' actiOn." It is conceded that the 'gi-aittiiik df a nevrtrial 'rests :. in .the sound discretion of the' trial-court and that-this court will not reverse on this account except for a manifest abuse of such discretion. But it is insisted that the court abused its discretion, calling for a reversal. We cannot agree. In Drike v. McDonald, 170 Ark. 919, 281 S. W. 674, it was held, ,quoting headnotes : "Where -a default judgment was entered on account of the absence' of 'defendant, the 4 . ranting . a new trial is..within, the sound discretion,of ,the trial; court. ... .••"Refusal,to set aside •a :default judgment will not 1.)e .reversed where the . defendant•Wa.s fifteen minutes . late in 'appearing . in' court . and waited'tWo days hefore 'asking tO hali,e;the' . judgniefic set,aside, and ifi his Motion:set up a different defense, from thatJileaded in hiS ansWer." , • In• the case at bar appellant -did not appear.. He made -to : effort -in advanCe to'rn..ake a 'showing for -a . continu-anee'Oh"accorint .. ofillness, 'arid 'when -granted perthission to- Make' . Such . 0ioWing..it toole:seVeral:hoUrS tO' do se, and bi . ,the meantime _the:ease was . heard and 'determined. The :trial eourt has a wide : discretion•in controlling the orderly dispatch of business, 'and it was.not:required to
1130 [192 snspend its business and await the • convenience of appellant to make a proper showing for a continuance. No. diligence was shown and the court did•not abuse its discretion in this .regard. . • As to the meritorious defense sought to •e set up some four months later, appellant is again concluded by the holding in Drake.v. McDonald, supra. In his answer he denied executing and delivering the note. In the amendment, he admits giving the note, but claims fraud in its procurement. The statute, § 6293 of Crawford & Moses' Digest, provides : "A judgment shall • not .be Tacated on motion or complaint nntil it is adjudged that there is a valid , defense to the action in which the judgment is rendered * ' '." His alleged defense- set up in the amendment was not claimed -for four .months, was controverted by denial and no proof offered to sustain it. Moreover, appellee had testified .on the trial of the case that the note was , given him for services rendered in securing eyidence for 7appellant in the .trial of another case, and that he saw appellant sign same. Lot the judgmerit,he.a.ffirmed.• •
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.