{ "id": 1678964, "name": "Sam JONES v. John HARDESTY et al", "name_abbreviation": "Jones v. Hardesty", "decision_date": "1977-05-31", "docket_number": "76-379", "first_page": "716", "last_page": "721", "citations": [ { "type": "official", "cite": "261 Ark. 716" }, { "type": "parallel", "cite": "551 S.W.2d 543" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "255 Ark. 911", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725350 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/255/0911-01" ] }, { "cite": "256 Ark. 994", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726291 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/0994-01" ] }, { "cite": "244 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721152 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/244/0503-01" ] }, { "cite": "244 Ark. 709", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722867 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/244/0709-01" ] }, { "cite": "246 Ark. 502", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604104 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0502-01" ] }, { "cite": "259 Ark. 797", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619142 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/259/0797-01" ] }, { "cite": "257 Ark. 768", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723578 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/257/0768-01" ] }, { "cite": "206 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485132 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/0503-01" ] }, { "cite": "36 S.W. 2d 667", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "183 Ark. 509", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1441769 ], "opinion_index": 0, "case_paths": [ "/ark/183/0509-01" ] }, { "cite": "208 Ark. 849", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1478559 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/ark/208/0849-01" ] } ], "analysis": { "cardinality": 522, "char_count": 8109, "ocr_confidence": 0.872, "pagerank": { "raw": 9.318284992225972e-08, "percentile": 0.513142465062635 }, "sha256": "dc729868061e234fe229f3f5dc6d71d78d9b12ddbe1e8e19d545859cd5dd9f2b", "simhash": "1:407881762a0a9bb6", "word_count": 1368 }, "last_updated": "2023-07-14T16:40:25.982646+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "We agree. Harris, C.J., and George Rose Smith and Holt, JJ." ], "parties": [ "Sam JONES v. John HARDESTY et al" ], "opinions": [ { "text": "Elsijane T. Roy, Justice.\nOn February 21, 1969, appellant Sam Jones instituted an action in Lafayette Circuit Court against appellees John Hardesty and Howard Richardson seeking judgment for $30,000 on a promissory note. After answer, and upon motion the cause was transferred to Chancery Court and there appellees filed a counterclaim and also third party complaints.\nOn March 23, 1972, testimony was heard on the complaint and counterclaim but continued for a hearing on the third party complaints until April 20, 1972.\nBy decree dated April 12, 1972, and filed April 17, 1972, appellant was awarded judgment against appellees in the principal sum of $30,000 with interest, attorney\u2019s fee and costs and appellees\u2019 cross complaint was dismissed.\nOn April 20, 1972, the trial of appellees\u2019 third party complaints commenced, neither appellant nor his attorney being present.\nBefore the testimony began attorney for appellees asked the court to withhold \u201cthe effect and entry of the original judgment until the entire case can be adjudicated and then our ten days\u2019 notice to appeal would run. We would have thirty days to appear and ten days to file notice of appeal.\u201d\nThe court in response to this request stated, \u201c. . . [I]n order that time for appeal might coincide, regardless of which party prevails, the Court would state that he considers the Order of April 12, 1972, to be an Interlocutory Order and not a Final Order.\u201d A docket notation to this effect also was made; however, the decree itself was never vacated or modified in any manner.\nOn April 20, 1972, after completing the testimony in the trial of the third party complaints of appellees, briefs were submitted and the last one was filed June 8, 1972.\nNo further action by taken by Judge Rowan prior to his death on May 24, 1973. Following his death an interim chancellor served through December 31, 1974. The newly elected chancellor assumed office January 1, 1975, and under authority of Rule 10 of the Uniform Rules and the Standing Order of the Court, without notice to appellant or his attorney, appellant\u2019s case, listed with forty others, was dismissed \u201cfor want of prosecution.\u201d\nIn an independent action appellees herein had obtained judgment against Pine-O-Pine, one of the third party defendants herein. That judgment was appealed and affirmed on April 19, 1976. Before the appeal had been decided appellant, through his then attorney, caused a writ of garnishment to be issued against Pine-O-Pine et al, which answered that the judgment against the corporation in favor of appellees was not final.\nOn April 20, 1976, appellant then had issued a new writ of garnishment, the first one having been dismissed pending outcome of the appeal as to Pine-O-Pine. The court entered an order on May 21, 1976, holding appellant had no judgment, that his cause had been dismissed and the writs of garnishment were a nullity. On June 28, 1976, the matter was reconsidered and the trial judge reached the same conclusion as previously.\nOn September 20, 1976, the matter was again reconsidered upon the oral testimony of appellant\u2019s original attorney and the attorney for appellees who was called as a witness by appellant. At the conclusion of questions by the attorney for appellant, counsel for appellees asked permission to remain on the stand and stated, \u201cIf the Court please, I will add my testimony as a witness but as rebuttal to Mr. Compton and also further enlighten the Court on some facts,\u201d after which about six pages of testimony by counsel followed. Nevertheless counsel did not withdraw thereafter but continued to represent appellees on appeal, including oral argument before this Court. After the testimony was taken the trial court again refused to vacate the judgment of June 28, 1976, and accordingly this appeal is brought.\nAppellant contends a final judgment was entered as to his cause on April 12, 1972, and that the subsequent rulings of the court dismissing appellant\u2019s cause for failure of prosecution deprive him of his property without due process of law.\nThe court\u2019s decree dated April 12, 1972, filed April 17, 1972, reads as follows:\nOn the 23rd day of March, 1972, this matter came on to be heard and, by agreement of the parties and with the approval of the Court, oral testimony was taken upon the issue raised by Plaintiff\u2019s Complaint and Defendants\u2019 Answer and Cross-Complaint. No evidence was taken on the issues raised by the Third Party Pleadings. It was agreed that all issues other than those presented by Plaintiff\u2019s Complaint and Defendants\u2019 Cross-Complaint would be reserved and tried on April 20th and 21st, 1972, if trial proved to be necessary.\nAll parties were given until the 7th day of April, 1972, to file their briefs. Plaintiff declined to file a brief, and Defendants\u2019 brief having been considered by the Court, together with all evidence and the pleadings, now, on this 12th day of April, 1972, the Court finds that plaintiff should have judgment against the defendants, and each of them, on his note in the principal sum of $30,000, together with interest at the rate of six (6%) percent per annum from the 28th day of September, 1967, and an attorneys fee in the amount of 13,000.00, together with his costs herein expended.\nThe Cross-Complaint of Defendants is dismissed.\nThis cause is set for trial on the 20th day of April, 1972, at 9:30 a.m., at Lewisville, Arkansas, on all remaining issues.\nIT IS SO ORDERED.\nJim Rowan Chancery Judge\n(Italics supplied)\nAppellees never requested any modification of the original decree, only that effect of the judgment be withheld so that appeal time would run concurrently with that of the third party actions. The court only intended the judgment to be held up for appeal purposes.\nIn Holloway v. Berezen, 208 Ark. 849, 188 S.W. 2d 298 (1945), this Court stated:\n* * * A docket notation is not an entry of judgment or decree upon the records of the court and cannot be used to supply a deficiency in the record of the Court. (Citing Herrod v. Larkins, 183 Ark. 509, 36 S.W. 2d 667; City of Monticello v. Kimbro, 206 Ark. 503, 176 S.W. 2d 152.) * * *\nSee also Baugh v. City of Pine Bluff, 257 Ark. 768, 520 S.W. 2d 275 (1975).\n16 Am. Jur. 2d Constitutional Law \u00a7 379 (1964), states:\nRights acquired by a judgment are property rights which cannot be taken without due process of law. * * * (Citing numerous cases in support of the statement.)\nWe find the delay was occasioned because the third party action was not decided by the original trial court nor his successors in office. This phase of the case has been awaiting decision since June 8, 1972. It would be unconscionable to penalize appellant and deprive him of his judgment under these circumstances. Accordingly the cause is remanded for reinstatement of the judgment.\nWe also call attention to the case of Canal Insurance Company v. Hall, 259 Ark. 797, 536 S.W. 2d 702 (1976), wherein we stated: Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299 (1969); Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23 (1968); and Rushton v. First Nat\u2019l Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968).\nWe must again take this occasion to reiterate our disapproval of an attorney testifying in an action in which he is an advocate. McWilliams & Kimes v. Tinder, 256 Ark. 994, 511 S.W. 2d 480 (1974); Watson v. Alford, 255 Ark. 911, 503 S.W. 2d 897 (1974); Montgomery v. 1st Nat\u2019l\nReversed and remanded.\nWe agree. Harris, C.J., and George Rose Smith and Holt, JJ.\nChar-Lite Briquetts, Inc. and Pine-O-Pine Company, appellants v. H. E. Richardson, E. C. Hochendel and W. A. Woolman, appellees, No. 75-126, not designated for publication.\nThe record reflects that appellant\u2019s original attorney took no part in further proceedings after he was called to testify.\nMr. Compton had not taken the stand, but was examining appellees\u2019 attorney.", "type": "majority", "author": "Elsijane T. Roy, Justice." } ], "attorneys": [ "Brown, Compton & Prewett, by: Robert C. Compton, for appellant.", "Potter & Potter, by: David J. Potter, for appellees." ], "corrections": "", "head_matter": "Sam JONES v. John HARDESTY et al\n76-379\n551 S.W. 2d 543\nOpinion delivered May 31, 1977\n(Division I)\n[Rehearing denied July 5, 1977.]\nBrown, Compton & Prewett, by: Robert C. Compton, for appellant.\nPotter & Potter, by: David J. Potter, for appellees." }, "file_name": "0716-01", "first_page_order": 756, "last_page_order": 761 }