{ "id": 1488157, "name": "Barringer v. Whitson", "name_abbreviation": "Barringer v. Whitson", "decision_date": "1943-02-08", "docket_number": "4-6963", "first_page": "260", "last_page": "264", "citations": [ { "type": "official", "cite": "205 Ark. 260" }, { "type": "parallel", "cite": "168 S.W.2d 395" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "125 S. W. 129", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "93 Ark. 462", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546829 ], "opinion_index": 0, "case_paths": [ "/ark/93/0462-01" ] }, { "cite": "281 S. W. 368", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "170 Ark. 794", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371622 ], "opinion_index": 0, "case_paths": [ "/ark/170/0794-01" ] }, { "cite": "211 S. W. 371", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "138 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566937 ], "opinion_index": 0, "case_paths": [ "/ark/138/0403-01" ] } ], "analysis": { "cardinality": 480, "char_count": 8565, "ocr_confidence": 0.494, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6006199589242461 }, "sha256": "a0856ed39e232881245feb38679903973432acf2542f9f20079e4f30dc2e7c85", "simhash": "1:46d434e2113910a9", "word_count": 1507 }, "last_updated": "2023-07-14T20:00:03.571044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Barringer v. Whitson." ], "opinions": [ { "text": "Holt, J.\nAppellant sued appellee to vacate a default judgment in the amount of $700\u2019, rendered against her at a former term of the court wherein the appellant here was the defendant. As grounds therefor she alleged in her petition that she is a negro woman sixty years of age; that appellant filed suit against her August 1, 1941, and that she was duly served with summons; that on the 20th day after receiving said summons she appeared in the Pulaski circuit court-and remained for several hours awaiting her case to he called, hut that she later learned that no court was in session on that day; that-a few days later appellee\u2019s attorney, F. W. A. Eiermann, came to her home, talked to her about the case and told her that she need not go to court; that there was nothing to the lawsuit, and that relying upon the advice of appellee\u2019s attorney she failed to take any further action to protect her interest, and had in fact forgotten about the matter until about March 15, 1942, when the sheriff of Pulaski county levied an execution upon her home and advertised it for sale to satisfy the judgment which appellee had obtained; that she immediately began an investigation and discovered that the judgment had been rendered against her by default on November 19, 1941. She further alleged that the statements made to her by appellee\u2019s attorney completely misled her, \u201cthrew her off guard and caused her not to make a defense to the action; that she was lulled into a false sense of security by said statements, relied on them absolutely and by reason thereof failed to make any defense; that she had a complete, meritorious defense to the lawsuit itself in that the said Ernest Toby, who was driving the automobile at the time of the collision alleged in the original cause, was not her employee, as alleged, but that he had borrowed the automobile in question from her for his own benefit, in that he was to attend certain church services on his own accord, and that defendant had no interest in said trip whatsoever and had no knowledge of the accident or the events leading up to it. \u2019 \u2019 Her prayer was that the judgment be set aside, and that she be granted a hearing in the cause.\nAppellee filed motion to dismiss appellant\u2019s petition on the ground \u201cthat said petition fails to comply with the statutory provisions, as contained in \u00a7\u00a7 8246, 8248 and 8249, Pope\u2019s Digest,\u201d and denied the allegations contained therein.\nUpon a hearing there was presented to the court the testimony of appellant, testifying in her own behalf, and the testimony of appellee\u2019s attorney, Eiermann, who testified on behalf of appellee. The court found the issues in favor of appellee, and this appeal followed.\nFor reversal appellant relies upon sub-section 7, \u00a7 8246 of Pope\u2019s Digest which provides: \u201cThe court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order, (7) for unavoidable casualty or misfortune preventing the party from appearing .or defending.\u201d The petition to vacate the judgment having been filed after the expiration of the term at which it was rendered, it was necessary for appellant not only to bring herself within the provisions of the seventh sub-division, supra, but she must also show that she had a valid defense to the cause of action. Little Rock C. of C. v. Reliable Furniture Co., 138 Ark. 403, 211 S. W. 371.\nThere appears to be no material conflict in the testimony presented. Appellant is a negro woman sixty years of age and a widow. She testified that she had never had any experience in court prior to this litigation; that she had known Mr. Eiermann, appellee\u2019s attorney, for many years and had great confidence in him since he had been attorney for her husband prior to his death; that Mr. Eiermann came to see her before the damage suit was filed against her and thereafter and on one of the visits (we quote from appellant\u2019s testimony): \u201cQ. What did you talk about? A. That is what we talked about; he told me there wasn\u2019t nothing to it. Q. You talked about this lawsuit? A. Yes, sir. Q. It is important, Pearl, to give us as near as you can, and as mucli as you can about this conversation. A. After Judge Eiermann told me there wasn\u2019t nothing to it, I had confidence in him and didn\u2019t think any more about it\u201d; that after this conversation she heard no more about the case until execution was issued. Mr. Eiermann testified that he made at least two trips to appellant\u2019s home to effect a compromise settlement of the suit for damages against her, and we quote from his testimony: \u201c \u2018Well,\u2019 she said, \u2018I haven\u2019t got anything, all that I have is that car; that property across the street belongs to the estate, and I haven\u2019t any interest in that.\u2019 \u2018Well,\u2019 I said, \u2018If you haven\u2019t got anything there won\u2019t-be anything to the lawsuit, and we can\u2019t get anything from you.\u2019 I said, \u2018Now, bear in mind, if you have anything you had better bring about a compromise settlement,\u2019 and she said, \u2018No, I haven\u2019t got anything,\u2019 and those were the only two times I came to see her.\u201d This conversation took place while the suit was pending. Quoting1 further from his testimony: \u201cQ. Why didn\u2019t you tell her, Doctor, you had better go and get you a lawyer, I am representing the other side? A. When you say, file an answer, that means you have to have a lawyer. I called her attention to the wording of the summons and it only requires that she should file an answer in that time and not go into court. . . . Q. You took this judgment against her on November 19, wasn\u2019t it? A. Yes. Q. Did you have any conversation with her from August until November? A. No, no reason for it. Q. Never was by there any more? A. Why should I? Q. You didn\u2019t get out an execution on your judgment before the term expired. A. That is true. Q. You got your judgment in November and waited until March to get out an execution? A. Yes. Q. You knew the new term started the first week in March? A. Yes, sir. Q. Is that the reason you waited? A. Yes, sir.\u201d He further testified that on August 1 he wrote a letter to appellant in which he, among other things, said, \u201cI shall see you some time next week, as I promised you, and if you will make settlement with me for Mr. Whitson, we shall immediately withdraw the lawsuit and no harm is done. You may rest assured I will treat you right in the premises.\u201d\nBy reason of the fact that appellee\u2019s attorney represented appellant\u2019s husband prior to his death she had complete confidence in him and relied upon his advice.\nIn the light of the testimony presented by this record we think that no other reasonable conclusion can be reached than that appellee through his attorney, by his conduct, misled this simple, inexperienced, trusting-negro woman into believing that the suit which appellee had filed against her amounted to nothing and that she need pay no attention to it. By his actions he lulled her into a false sense of security, the legal effect of which amounted to an \u201cunavoidable casualty or misfortune\u201d which prevented appellant from appearing or defending-. In fact we think the testimony of appellee\u2019s witness alone is sufficient to support this view. In the case of McElroy v. Underwood, 170 Ark. 794, 281 S. W. 368, this court said: \u201cThere was such a misunderstanding as constituted unavoidable casualty or misfortune which prevented the defendant from appearing and defending. There is no room to suspect \u2014 and the lower court did not find \u2014 that plaintiff\u2019s attorney had intentionally misled the defendant, but the defendant and her husband, who was her representative in the matter, did testify that they were misled, and, because of that fact had not arranged with the attorney they intended to employ to file an answer presenting a defense, which, if true, would defeat a recovery, and had not furnished the attorney the information needed to prepare the answer.\u201d See Weller v. Studebaker Bros. Mfg. Co., 93 Ark. 462, 125 S. W. 129.\nAppellant has stated a valid defense to the suit wherein the default judgment in question was rendered against her. In fact, appellee makes no contention to the contrary. We conclude, therefore, that the court erred in refusing to set aside the default judgment in accordance with the prayer of appellant\u2019s petition, and accordingly the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "Byron Bogar\u00e1, for appellant.", "F. W. A. Eiermann, for appellee." ], "corrections": "", "head_matter": "Barringer v. Whitson.\n4-6963\n168 S. W. 2d 395\nOpinion delivered February 8, 1943.\nByron Bogar\u00e1, for appellant.\nF. W. A. Eiermann, for appellee." }, "file_name": "0260-01", "first_page_order": 280, "last_page_order": 284 }