Barkis v. Bell, 238 Ark. 683

Sam Robinson, Associate Justice. On the 22nd day of April, 1963, appellee herein, Linda Bell, filed suit in the Garland Circuit Court asking for jugment in the sum of $60,000 for personal injuries alleged to have been suffered by her in an automobile accident due to the negligence of appellant herein, Bruce Barkis. Within the statutory time, Barkis filed a motion for additional time to answer. The motion was granted. Before the allotted time expired, Barkis filed a second motion for additional time; again the motion was granted. The time to answer, as extended, expired June 10, 1963.

On that day Barkis filed Answers to Interrogatories which had been filed with the Complaint. Two days later, on June 12, the attorney for the plaintiff called the attention of Barkis’ attorney to the fact that the record did not show an answer had been filed. The attorney for Barkis immediately, on June 12, filed an answer. It was a general denial. About six months later, on January 29, 1964, the plaintiff, Linda Bell, filed a motion to strike the answer on the ground that it had not been filed within the time allowed by law.

In response to the motion to strike, one of the attorneys for defendant — appellant—filed an affidavit in which he stated: “On June 10, 1963, in the afternoon, I went to the office of the Circuit Clerk in the Garland County Court House and took with me several files, among these being the file in this case. In the file at that time were originals and a number of copies of both the Interrogatories and the Answer.

I went to the office of the Circuit Clerk in the Garland County Court House and at that time delivered to one of the deputy clerks the original of the Answers to the Interrogatories and also the Answer to the plaintiff’s Complaint. These pleadings were taken by the deputy clerk. ’ ’ In reply, appellee filed an affidvavit of a deputy in the Circuit Clerk’s office in which she stated: “At approximately 4:20 p.m., very close to our closing time, on June 10, 1963, Mr. Richard H.

Wootton appeared at the office of the Circuit and Chancery Clerk and he handed me certain Answers to Plaintiff’s Interrogatories in this case to be filed. Answers to the Interrogatories was the only thing he handed to me and asked to be filed. He did not hand me any Answer or pleading with respect to this case at that time.” The trial court granted the motion to strike the answer, and rendered judgment for the plaintiff subject to the right of defendant to contest the amount of damages. In Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439, and Pyle v. Amsler, 227 Ark. 785, 301 S.

W. 2d 441, ive held it Avas mandatory that the Circuit Court render judgment for the plaintiff Avhere an ansAver was not filed in the time prescribed by statute. Subsequently there became effective Act 53 of 1957, Ark. Stats.

Ann. § 29-401 (Repl. 1962), which provides: “Judgment by default shall be rendered by the Court in any case Avhere an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, . . . that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon shoAving of excusable neglect, unavoidable casualty or other just cause.” In Fitzwater v. Harris, 231 Ark. 173, 328 S. W. 2d 501, and Easley v. Inglis, 233 Ark. 589, 346 S.

W. 2d 206, we construed the foregoing statute as giving the court authority to set aside a default judgment for any one of three reasons: (1) excusable neglect, (2) unavoidable casualty, (3) other just cause. Although, no doubt, an answer in the ease at bar was not filed on June 10, surely the failure of counsel for defendant to file it at that time, in the circumstances shown, is covered by one of the causes for setting aside a judgment enumerated in the foregoing statute.

In addition to counsel’s testimony that he took the answer to the court along with the Answers to the Interrogatories to file in the case and thought he had filed it, he is corroborated by the circumstances. In the .first place, it is not likely that counsel Avould have made the trip to the court house to file the Answers to the Interrogatories Avithout taking the AnsAver to the Complaint along to file it. It was very short — a general denial.

Furthermore, when counsel for the defendant was informed two days after the Answer was due that it had not been filed in court, he found copies of it in his file, but the original was not there. Evidently it Avas lost, and in filing the Answers to the Interrogatories counsel was under the impression that he had also filed the answer to the complaint. In these circumstances we believe that it would be within the letter and spirit of Ark. Stats. Ann. § 29-401 (Repl. 1962) to set aside the default judgment. Reversed.