Opinion
No. 4-8722
Opinion delivered April 11, 1949.
1. APPEAL AND ERROR — INSUFFICIENCY OF ABSTRACT. — Since appellant's abstract contains only the two instructions given by the court which appellant thought to be erroneous and it cannot, without search of the transcript, be known whether the instructions as a whole correctly presented the case to the jury, the abstract will be held insufficient under the rules of this court. 2. APPEAL AND ERROR. — Where no errors appear in the record proper and appellant failed to file proper abstract and same is not supplied by appellee, the judgment will be affirmed.
Appeal from Pulaski Circuit Court, Third Division; J. Mitchell Cockrill, Judge; affirmed.
O. W. (Pete) Wiggins, for appellant.
Earle W. Moorhead, S. Hubert Mayes and William H. Donham, for appellee.
Appellant sued appellee for $1,533.54 which she alleged was due her (under 9084, Pope's Digest) for overtime work done by her as a waitress for appellee. Appellee's answer was a general denial and plea of accord and satisfaction. A jury found issues in favor of appellee and from judgment on the verdict this appeal is prosecuted.
Appellee has filed a motion to affirm for noncompliance with Rule 9 of this court, in that appellant has failed to make and file abstract as required by this rule. This motion must be granted.
The motion for new trial contains eight paragraphs and as abstracted reads: "Motion for a New Trial provides: The verdict of the jury is contrary to the law, facts; the law and facts. The court erred in its instructions to the jury, etc."
No abstract of the instructions given by the court has been made. Two instructions given at the request of appellee, and thought by appellant to be erroneous, are copied in the argument portion of appellant's brief. Other instructions were given, but without a search of the transcript we have no way of knowing whether the instructions, as a whole, correctly presented the case to the jury.
We have uniformly held that where, as here, there is no record error in the judgment appealed from, it must be affirmed when appellant fails to file proper abstract and same is not supplied by appellee. Crouch v. Gilbert, 210 Ark. 885, 198 S.W.2d 72; Pool v. Shuffield, 213 Ark. 975, 214 S.W.2d 223.
The judgment is affirmed.