{ "id": 1756118, "name": "R. L. BURNS, Jr. v. M. L. MADDEN, d/b/a SHAMROCK CLUB", "name_abbreviation": "Burns v. Madden", "decision_date": "1980-12-22", "docket_number": "80-261", "first_page": "572", "last_page": "579", "citations": [ { "type": "official", "cite": "271 Ark. 572" }, { "type": "parallel", "cite": "609 S.W.2d 55" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "238 Ark. 683", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734232 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/238/0683-01" ] }, { "cite": "263 Ark. 552", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672708 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0552-01" ] }, { "cite": "260 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616707 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0563-01" ] }, { "cite": "203 Ark. 861", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447044 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ark/203/0861-01" ] }, { "cite": "247 Ark. 895", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600669 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/247/0895-01" ] }, { "cite": "264 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668866 ], "weight": 2, "year": 1978, "opinion_index": 1, "case_paths": [ "/ark/264/0069-01" ] }, { "cite": "266 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717652 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/266/0155-01" ] }, { "cite": "249 Ark. 230", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718731 ], "weight": 5, "year": 1970, "opinion_index": 1, "case_paths": [ "/ark/249/0230-01" ] }, { "cite": "264 Ark. 810", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1669043 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/264/0810-01" ] }, { "cite": "253 Ark. 827", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627367 ], "weight": 6, "year": 1973, "opinion_index": 1, "case_paths": [ "/ark/253/0827-01" ] }, { "cite": "233 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691598 ], "weight": 4, "year": 1961, "opinion_index": 1, "case_paths": [ "/ark/233/0249-01" ] }, { "cite": "257 Ark. 365", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720009 ], "weight": 4, "opinion_index": 1, "case_paths": [ "/ark/257/0365-01" ] }, { "cite": "242 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720133 ], "weight": 6, "opinion_index": 1, "case_paths": [ "/ark/242/0413-01" ] }, { "cite": "227 Ark. 782", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705670 ], "weight": 6, "opinion_index": 1, "case_paths": [ "/ark/227/0782-01" ] }, { "cite": "227 Ark. 785", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705385 ], "weight": 6, "opinion_index": 1, "case_paths": [ "/ark/227/0785-01" ] }, { "cite": "238 Ark. 683", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734232 ], "weight": 4, "year": 1964, "opinion_index": 1, "case_paths": [ "/ark/238/0683-01" ] }, { "cite": "263 Ark. 552", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672708 ], "weight": 2, "year": 1978, "opinion_index": 1, "case_paths": [ "/ark/263/0552-01" ] }, { "cite": "203 Ark. 861", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447044 ], "weight": 2, "year": 1952, "opinion_index": 1, "case_paths": [ "/ark/203/0861-01" ] } ], "analysis": { "cardinality": 686, "char_count": 14563, "ocr_confidence": 0.739, "pagerank": { "raw": 3.1620995807430507e-07, "percentile": 0.8633543886149347 }, "sha256": "ade608186e37d0d4b83a035ed9b7595ac4f07e56782e7019c3873e2ee37667a7", "simhash": "1:f07e9c7e512e91da", "word_count": 2531 }, "last_updated": "2023-07-14T21:22:30.070289+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Fogleman, C.J., and Hickman, J., dissent.", "I am authorized to state that Mr. Justice Hickman joins in this opinion." ], "parties": [ "R. L. BURNS, Jr. v. M. L. MADDEN, d/b/a SHAMROCK CLUB" ], "opinions": [ { "text": "Frank Holt, Justice.\nThis appeal results from the trial court\u2019s denying appellant\u2019s motion to quash and vacate a default judgment.\nOn November 7, 1978, the appellee filed an action against the appellant asserting he had suffered property damages to his building as a result of the negligent operation of an automobile by appellant and that a separate defendant had negligently entrusted the automobile to appellant. On November 13, 1978, a summons was served on him. On January 8, 1979, a default judgment for $5,000, plus costs, was rendered against him. On January 9 a summons, issued 4 days earlier, was served on the separate defendant, the owner of the automobile. On January 23, 1979, a motion to quash service was filed on behalf of both the appellant and the separate defendant. On March 9, 1979, during term time, appellant amended this pleading, seeking to set aside the judgment. The court treated the supplemental pleading as a motion to vacate and, after a hearing, overruled the motion.\nWe need only to discuss appellant\u2019s contention that the court erred in not setting aside the default judgment for \u201cexcusable neglect, unavoidable casualty and other just cause.\u201d Ark. Stat. Ann. \u00a7 29-401 (Repl. 1962). It is within the sound discretion of the trial court to grant or deny a motion to set aside a default judgment, and the question on appeal is whether there has been an abuse of that discretion. Johnson v. Jett, 203 Ark. 861, 159 S.W. 2d 78 (1952); and \u00a7 29-401, supra. Default judgments are not favorites of the law and should be avoided when possible. Winters v. Lewis, 260 Ark. 563, 542 S.W. 2d 746 (1976); and Perry v. Bale Chevrolet Co., 263 Ark. 552, 566 S.W. 2d 150 (1978). \u201cThe granting of a default judgment is a harsh and drastic action and may deprive a party of substantial rights.\u201d Winters v. Lewis, supra.\nAppellee\u2019s suit was filed by an attorney, who had previously represented appellant on an unrelated matter in which he had been given power of attorney for appellant during a period of time from 1976 to 1977. There was some evidence he had also represented him in the spring of 1978, 7 months prior to the filing of this action, on a DWI charge. When appellant received the summons on November 13, 1978, he telephoned his former attorney, who informed him that he was representing the appellee in the matter, could not discuss the suit with him, and advised appellant to get an attorney to represent him. When appellant said he had insurance coverage, the attorney explained the carrier\u2019s duty to defend him and advised appellant to contact the carrier. According to appellant, the attorney did not advise him to hire a lawyer but told him he wanted the name of the insurance company because he wanted to collect from it. However, appellant admitted he knew by the end of this conversation that the attorney was representing the appellee and would not represent him. It is undisputed that appellant called back that same day and left the name of his insurance carrier with the attorney\u2019s secretary. That day the attorney wrote the insurance carrier, sending a copy of the complaint. About a week later, or within the 20 days after service of process, the carrier advised him by telephone and letter that there was no insurance coverage on the vehicle. The attorney did not pass this information on to the appellant. Appellant testified that when he called back and gave the name and telephone number of the insurance company to the attorney\u2019s secretary, appellant \u201cthought that was the end of it.\u201d After receiving notice of the default judgment, appellant then consulted his present attorney, who promptly filed the motion to quash service, as indicated, and later amended the pleading to vacate judgment.\nWhen it is demonstrated there exists a just cause for a defendant not filing a timely answer, a default judgment should be set aside. Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269 (1964). As a proper guide to the exercise of discretion, the basic underlying policy is to have each case determined on its merits because, in the normal course of litigation, substantial rights are preserved and justice between the parties is best served by this policy. In view of the former relationship between appellant and appellee\u2019s attorney and appellant\u2019s promptness in questioning the default judgment, we are of the view that there was an honest and unfortunate misunderstanding which constituted just cause for not filing a timely answer. Therefore, the default judgment is set aside and vacated.\nReversed and remanded.\nFogleman, C.J., and Hickman, J., dissent.\nThis statute is now replaced by Ark. Rules of Civil Procedure, Rules 55 and 60 (Repl. 1979).", "type": "majority", "author": "Frank Holt, Justice." }, { "text": "John A, Fogleman, Chief Justice,\ndissenting. Reversal of the action of the circuit court in denying the motion to set aside the default judgment in this case is a reversion to the rather chaotic situation that existed prior to the legislative reform undertaken a quarter of a century ago. A default judgment should not be set aside under Ark. Stat. Ann. \u00a7 29-401 (Repl. 1962) except for excusable neglect, unavoidable casualty or other just cause. This statute which is the combination of Acts 49 and 351 of 1955, as amended by Act 53 of 1957, seriously impaired previous holdings that had accepted almost any excuse given for failure of a defendant to file a timely pleading. See Pyle v. Amsler, 227 Ark. 785, 301 S.W. 2d 441; Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439- In Walden, it was clearly stated that we were not foreclosing the possibility of relief to a defendant who has been prevented by unavoidable casualty from making his defense. In the absence of unavoidable casualty, excusable neglect or other just cause, the court had no discretion to set aside the default.\nIn Moore v. Robertson, 242 Ark. 413, 413 S.W. 2d 872, where, as here, appellant moved to set aside a default judgment rendered during the same term, we said:\nAt one time our statutes were markedly liberal in permitting trial courts to grant extensions of time for the filing of defensive pleadings and to set aside default judgments within the term. That liberality was greatly curtailed by the enactment of Acts 49 and 351 of 1955. Those acts were construed in Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957), and Pyle v. Amsler, 227 Ark. 785, 301 S.W. 2d 441 (1957). We held that the 1955 statutes were mandatory in requiring a defendant to plead within the time fixed by law and in allowing a trial court to set aside an ensuing default judgment only upon a showing of unavoidable casaulty.\nSome two months before the Walden and Pyle cases were decided the legislature adopted Act 53 of 1957,\nwhich relaxed the strictness of the 1955 acts to the extent of declaring that \u201cnothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.\u201d Ark. Stat. Ann. \u00a7 29-401 (Repl. 1962). In the case at hand there is no issue of unavoidable casualty. The question is whether the trial court abused its discretion for finding either excusable neglect or other just cause for vacating the judgment.\nWhat we said in Robertson v. Barnett, 257 Ark. 365, 516 S.W. 2d 592, is equally appropriate here, viz:\nAppellants quote from decisions of this court prior to Acts 1955, No. 49, and from decisions of other courts construing similar statutes to the effect that the delay in responding to the complaint came about through \"excusable neglect, unavoidable casualty or other just cause.\u201d The history of the law procedure before Acts 1955, No. 49, and the effect and purpose of the change brought about by Acts 1955, No. 49 can be found in Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957) and Pyle v. Amsler, Judge, 227 Ark. 785, 301 S.W. 2d 441 (1957). The effect of the 1957 Amendment, Acts 1957, No. 53, which provided: \u201c. . . that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause,\u201d has been considered in Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S.W. 2d 784 (1961); Moore Adm\u2019x v. Robertson, 242 Ark. 413, 413 S.W. 2d 872 (1967); and Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W. 2d 236 (1973). ***\nFurther in Allied Chemical Corp. v. Van Buren School Dist., 264 Ark. 810, 575 S.W. 2d 445, we added:\n[W]e have discussed, in several cases, what does or does not constitute a showing of \u201cexcusable neglect, unavoidable casualty or other just cause.\u201d Perry v. Bale Chev. Co., 263 Ark. 552, 566 S.W. 2d 150 (1978); Robertson v. Barnett, 257 Ark. 365, 516 S.W. 2d 592 (1975); Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W. 2d 236 (1973); Ark. Elect. Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W. 2d 728 (1970); Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269 (1964); and Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S.W. 2d 784 (1961). Also we have often said that the question before us, when reviewing a trial court\u2019s decision to grant or deny a motion to set aside a default, is whether the court abused its discretion. Moore, Administratrix v. Robertson, 242 Ark. 413, 413 S.W. 2d 872 (1967), and Ark. Elect. Co. v. Cone-Huddleston, supra.\nThe fact that the motion was filed during the term of court during which the judgment was rendered does not enlarge either the discretion of the trial court or appellate review by this court. In Ryder Truck Rental, Inc. v. H. B. Wren Oil Distributing Co., 253 Ark. 827, 489 S.W. 2d 236, we said:\nThe default in pleading under Ark. Stat. Ann. \u00a7 27-1135 (Repl. 1962) is not questioned in this case, and there is no question that the motion to set aside the judgment was filed during the same term of court in which the judgment was rendered, so the question simply boils down to whether the trial court abused its discretion in refusing to set aside the default judgment because of excusable neglect, unavoidable casualty or other just cause.\nThe setting aside of a default judgment under authority of Ark. Stat. Ann. \u00a7 29-401 is an action which addresses itself to the discretion of the trial court \u2014 not the discretion of this court. Arkansas Electric Co. v. Cone-Huddleston, Inc., 249 Ark. 230, 458 S.W. 2d 728. In Renault Central, Inc. v. International Imports, 266 Ark. 155, 583 S.W. 2d 10, we said:\nA trial judge has wide discretion in determining whether a default judgment should be vacated and this court will not reverse the decision of the trial judge unless he has abused that discretion. Jetton v. Fawcett, 264 Ark. 69, 568 S.W. 2d 42 (1978) and Davis v. McBride, 247 Ark. 895, 448 S.W. 2d 37. ***\nEven before \u00a7 29-401 became law, this court had followed the rule that the denial of a motion to set aside a default judgment during the term of court at which it was rendered should not be disturbed on appeal in the absence of an abuse of the trial court\u2019s discretion. Johnson v. Jett, 203 Ark. 861, 159 S.W. 2d 78.\nI do not see how this court can say that the trial court abused its discretion. It appears to me that this court is exercising its own discretion, or, at least, saying just how the trial court should have exercised its discretion. This leaves the trial court little latitude.\nBurns testified that the power of attorney under which Davis had served had been dissolved for a year and that he understood this when he called Davis after being served with the summons. If he had not known Davis, he would have employed an attorney when he received the summons. He said that he was definitely aware that Davis was certainly not representing him but was representing Madden, but did not know this when he first called Davis. He said that after he had his very first telephone conversation with Davis he came to the conclusion that Davis was representing Madden.\nDavis testified positively that he told Burns that Burns needed to find an attorney to represent him, and that he (Davis) told Burns specifically that he represented Madden and that he made sure that Burns understood that, ethically, he could not discuss the matter with Burns. David also said that he told Burns that if Burns had insurance he must contact the insurance carrier.\nAlthough there is no major conflict in the pertinent testimony, the trial court obviously believed Davis. It is quite clear that Burns understood that he needed to employ a lawyer. Whether Davis wanted to get in touch with Burns\u2019 insurance carrier is totally beside the point. Even if Davis said he wanted to collect from the insurance company, there was no reason for Burns to believe that furnishing the name of a purported carrier concluded the matter. Davis denied telling Burns he should furnish the name of the insurance carrier. The insurance carrier advised Davis that the vehicle involved was not insured. Is there any reason to believe that Burns did not know this when he furnished the name of a carrier? I doubt that there is.\nI do not agree that Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269, lends any support to the majority\u2019s action in the factual background of this case. There, the defendant\u2019s attorney took an answer and answers to interrogatories to the clerk\u2019s office for filing on the last day and thought he had filed both pleadings. The deputy clerk with whom the answers to the interrogatories were filed stated that no answer was handed to him by the attorney. When alerted to the fact that the answer had not been filed, the attorney discovered the copies of the answer in his file but not the original. We said that apparently it had been lost. There was no explanation as to when, where, how or by whom it had been lost. In the attorney\u2019s affidavit, he said that the answer was delivered to and received by a deputy clerk. The answer was filed, two days later, when the plaintiffs attorney advised defendant\u2019s attorney that the record did not show an answer. No action was taken by the plaintiff to strike the answer for six months. The filing of the answers to interrogatories there certainly was consistent with an intention not to default, whether it can be called a defensive pleading or not.\nI would affirm the judgment.\nI am authorized to state that Mr. Justice Hickman joins in this opinion.", "type": "dissent", "author": "John A, Fogleman, Chief Justice," } ], "attorneys": [ "Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellant.", "Everett & Whitlock, by: John C. Everett, for appellee." ], "corrections": "", "head_matter": "R. L. BURNS, Jr. v. M. L. MADDEN, d/b/a SHAMROCK CLUB\n80-261\n609 S.W. 2d 55\nSupreme Court of Arkansas\nOpinion delivered December 22, 1980\nBatchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellant.\nEverett & Whitlock, by: John C. Everett, for appellee." }, "file_name": "0572-01", "first_page_order": 614, "last_page_order": 621 }