Appellant, a minor, who sues by his mother as his next friend, was a carrier engaged in delivering newspapers for the Arkansas Democrat Company — a corporation — the publisher of an afternoon newspaper. He alleged in his complaint that he requested Mr. Casey, the circulation manager, "to give him a statement to a certain subscriber of the Democrat instructing said subscriber that this plaintiff was entitled to collect a portion of a bill due by said subscriber," and he was directed by Mr. Casey to apply to W. T. Crutchfield, another employee of the corporation, for the statement. He went to Crutchfield, "who was in charge of the carriers of said newspaper and requested the aforesaid statement. Thereupon the plaintiff was ordered out of the place by defendant Crutchfield. Plaintiff did not leave immediately, and defendant Crutchfield attacked him," causing him to suffer serious and painful injuries, to compensate which he sued both Crutchfield and the corporation. Separate answers were filed denying all the allegations of the complaint.
At the trial of the cause the jury returned the following verdict: "We, the jury, find for the plaintiff against the Arkansas Democrat, and assess his damages at $500.00." The verdict, signed by the foreman, made no reference whatever to Crutchfield, but a judgment was spread upon the records of the court by the clerk thereof on the day the verdict was returned by the jury, exonerating the defendant, Crutchfield.
On the following day there was filed a "Motion of Defendant, Arkansas Democrat Company, to set aside judgment against it and enter judgment in its favor," and on the same day on which this motion was filed the court made an order setting this judgment aside. In this order, the presiding judge made the finding that at the time of the return of the verdict it was his conception of the law that the master could not be and was not liable unless the servant was also liable. This order contains the further recital that "The court finds that the clerk inadvertently entered judgment against defendant, Arkansas Democrat Company, and a judgment in favor of the defendant, W. T. Crutchfield, and the court finds that *Page 137 the entry of said judgment was premature and inadvertently done, and should be set aside, which is accordingly done." It was then ordered that the cause of action be dismissed as against both defendants. A motion for a new trial was thereafter filed by plaintiff in which this action of and order by the court is questioned.
In the case of Mississippi River Fuel Corporation v. Senn, 184 Ark. 554, 43 S.W.2d 255, we quoted with approval the following statement of the law appearing in the case of Patterson v. Risher, 143 Ark. 376,221 S.W. 468: "`Where a recovery is sought in an action against a principal and his agent based upon the act or omission of the agent which the principal did not direct and in which he did not participate and for which his responsibility is simply that cast upon him by law by reason of his relationship to the agent, a judgment in favor of and exonerating the agent generally ex proprio vigore relieves the principal of responsibility and may be availed of by the principal for that purpose."
While this statement of the law was recognized as being correct in the Senn case, supra, it was there said that it could not be applied in all cases, and it was not there applied. In that case the master, a corporation, was held liable to the injured servant, whereas the fellow-servant, whose negligence had occasioned the injury; was exonerated by the verdict of the jury. This was held not to be beyond the power of the jury, for the reason that, while the contributory negligence of the injured servant would constitute a complete defense to the suit against the fellow-servant, such would not be true of the suit as against the master, for the reason that the doctrine of comparative negligence applied as against the master, if a corporation, and that while the injured servant might not recover against his fellow-servant, if his negligence contributed to his injury, such negligence would not defeat a recovery against the master, but would operate only to reduce the recovery in proportion the amount of negligence attributable to the injured employee. Section 7145, Crawford Moses' Digest. For the reason just stated the verdict and the judgment thereon in the Senn case, supra, was affirmed although a *Page 138 verdict had been returned in favor of the servant whose negligence had been the proximate cause of the injury.
It is not contended in the instant case that there was either allegation or proof to defeat the operation of the rule announced in the Risher case, supra. The insistence is that there has been no exoneration of Crutchfield, the servant; that the verdict being silent as to Crutchfield the case stands as if he had not been sued, inasmuch as the defendant corporation did not ask that the jury make finding and return as to Crutchfield's liability.
The cases cited by opposing counsel do not appear to be harmonious on this subject; but we do not review them for the reason that this case may be, and we think should be, disposed of upon another ground later to be herein discussed.
Counsel for appellant insist that inasmuch as a judgment had been entered upon the verdict the court thereafter had the jurisdiction only to grant a new trial, and did not have jurisdiction to enter judgment non obstante veredicto after having entered judgment on the verdict. The case of Oil Fields Corporation v. Cubage, 180 Ark. 1018,24 S.W.2d 328, is cited in support of that contention. But there is a very material, and we think controlling, distinction between that case and this. There, as she opinion recites, a final judgment had been entered, evidently under the direction or with the approval of the court. The opinion there recites that "After the verdict was returned and judgment entered upon it, appellant filed a motion for judgment in its favor against appellees, notwithstanding the verdict." That relief was denied, and the appeal was from that order. There a final judgment had been rendered and entered of record. Not so here. The court in the instant case reserved the question whether judgment should be pronounced upon the verdict, and made the express finding "that the entry of said judgment was premature and inadvertently done and should be set aside." There was, therefore, no judgment here.
The clerk is not the keeper of the conscience of the court, nor is it his province to say what action the court should take in a particular case. It is his function to *Page 139 make a record of what the court orders and adjudges. The statute provides that "The judgment must be entered on the order book and specify clearly the relief granted or other determination of the action." Section 6276, Crawford Moses' Digest. It is not contended that the presiding judge made any order on his docket or elsewhere which directed the clerk to spread the judgment upon the records of the court. Section 2100, Crawford Moses' Digest, reads as follows: "Full entries of the orders and proceedings of all courts of record of each day shall be read in open court on the morning of the succeeding day, except on the last day of the term, when the minutes shall be read and signed at the rising of the court."
This section was held to be directory in the case of Fernwood Mining Co. v. Pluna, 136 Ark. 107,205 S.W. 822, in that judgments entered of record would not be void because of the failure of the presiding judge to sign the record. But it does contemplate that the judgments entered do not become the pronouncements of the court until they have been approved by the court. Otherwise, why read them to the court? It is a matter of common knowledge that some judges permit the clerks of their courts to enter judgments, which are subject to their approval, while other judges require the submission of precedents for approval before their entry. But in any event and in all cases it is the presiding judge, and not the clerk, who determines whether any judgment has been rendered, and what that judgment was.
There is no uncertainty as to what happened here. The court found that he had rendered no judgment, but had reserved judgment, and that the action of the clerk in anticipating what that judgment would be was premature, and that the entry of the anticipated judgment was an inadvertence of the clerk. There would appear to be no question about the judge having this power if we accord him control of his own action, free from the supervision of the clerk of his court. If it were true that the judgment entered by the clerk had passed beyond the control of the court, then it is true also that it was adjudged that there was no liability on the part of *Page 140 Crutchfield to the plaintiff, for such is the recital of the judgment, and the doctrine of the Risher case, supra, would apply.
It is not questioned that the court had power to grant a new trial; but it is insisted that he could grant no other relief and that he had lost jurisdiction to render judgment for the defendant corporation notwithstanding the verdict.
But that view does not comport with 6272, Crawford Moses' Digest: "Where the verdict is special, or where there has been a special finding on particular questions of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be entered."
This section appears under the 6th subdivision of the chapter on Judgments and Decrees in Crawford Moses' Digest, under the subhead: "Upon the verdict of a jury." It directs the action of the court under the conditions there stated where the trial had proceeded to a verdict.
Here a verdict was returned which did not mention the name of one of the defendants who had been sued, had answered and had testified in the case. The third condition to which this section has application is "where the court has ordered the case to be reserved." The court's order recites that judgment had been reserved. If so, what shall or may the presiding judge then do? Unquestionably, he may grant a new trial, but the statute does not limit his jurisdiction to granting that relief. On the contrary, it provides that the judge "shall order what judgment shall be entered." The judge exercised that power and performed that function by ordering a judgment to be entered in favor of both defendants. He may have done this erroneously. The plaintiff may have made a case which should have been submitted to the jury, but the court had the jurisdiction to determine whether he had done so.
In the case of Scharff Distilling Co. v. Dennis,113 Ark. 221, 168 S.W. 141, a verdict was returned in favor of the plaintiff, which the court set aside, and thereafter entered judgment for the defendant, from which action *Page 141 an appeal was taken to this court. In the opinion upon the appeal before us it was said that "The ruling of the trial court, however, in not entering a judgment in accordance with the verdict and in setting aside the verdict, was that amount to reserving the cause for future consideration under the provision of 6242 of Kirby's Digest." This section, hereinabove quoted, is 6276 of Crawford Moses' Digest. It was not there determined whether this section of the statute authorized the entry of a judgment non obstante veredicto, that question being reserved, it being there said: "We need not determine whether the court, under the latter section, would be authorized to enter a judgment non obstante veredicto, for if there could be any warrant for such a judgment, not based solely upon matters appearing in the pleadings or as disclosed by the record proper, the testimony justifying such verdict would have to be undisputed so that the court might declare as a matter of law that the arty in whose favor the judgment was entered was entitled to it, notwithstanding the verdict in favor of the other party." But the testimony in that case was not undisputed, and for that reason it was held improper to direct a verdict in favor of the party against whom a verdict had been rendered by the jury.
The distinction between that case and this is that there a bill of exceptions was filed, from which it appeared that the testimony was not undisputed. Here no bill of exceptions was filed, and in its absence we must presume that the testimony, or the lack of it, warranted the court in declaring, as a matter of law, that the plaintiff was not entitled to recover judgment against either defendant.
The question there reserved is now decided, and we hold that after a verdict has been returned, but before the entry of judgment thereon, the court has the jurisdiction to determine whether judgment shall be entered, and, if so, what judgment, and if it be found by the court before the entry of judgment that no testimony has been offered to sustain the verdict, and that no cause of action has been shown to exist, the court has the jurisdiction to so declare and to direct the judgment which shall be *Page 142 entered. If it is thought that the court has acted erroneously a bill of exceptions should be filed, which would afford us on the appeal the opportunity to pass upon the question whether, under the testimony, a verdict should have been directed in favor of the party for whom judgment was rendered.
It is and should be the settled policy of the courts to end litigation as soon as may be, and the jurisdiction of the court to direct a verdict against a litigant who does not offer testimony sufficient to support his cause of action is well established and its exercise has been many times approved.
There is no bill of exceptions in the case, and in its absence it will be conclusively presumed that the testimony, or the lack of it, supported the action of the court. This is an elementary rule of practice, announced in innumerable cases. One of the principal purposes of a bill of exceptions is to bring upon the record the testimony in the case, and we cannot say that the trial court misconceived the effect of the testimony where it has not been preserved. If, therefore, the trial court was of opinion that there was no testimony to support a verdict against either defendant, it was the duty of the court to so direct the jury. The practice in this respect is equally as well settled. This, it must be presumed, is what the court, in legal effect, did. If there was no testimony upon which the servant could be held liable, the court had the jurisdiction to find, both as a matter of fact and as a matter of law, that the master was not liable, inasmuch as there is no liability asserted in this case except that growing out of the rule of respondeat superior, and there is no question of comparative negligence in the case. There being no bill of exceptions, we have before us the question only of the jurisdiction of the court to enter the judgment appealed from. We think the court had that jurisdiction, and the judgment is, therefore, affirmed.
MEHAFFY and BUTLER, JJ., dissent.