1122	MCENTIRE V. ROBINSON	[247 

J. L. McENTIRE, J. C. McENTIRE AND W. A.


McENTIRE v. CURTIS ROBINSON 

5-5124	

449 S. W. 2d 395


Opinion delivered February 2, 1970 

APPEAL & ERROR—RULING ON MOTION—DISCRETION OF TRIAL COURT, 

ABUSE OF.—No abuse of discretion was shown by trial court's 

refusal of appellant's motion requesting court's authority ior 

appellant to conduct a survey upon appellee's land to confirm 

the boundary established by court's decree and appellee's survey 

since appellee was charged by the decree with responsibility of 

moving his fence to the correct line prior to January 1, 1969, 

since one of the appellants caused iron stakes indicating the 

line established by appellee's survey to be placed in the ground, 

and since appellants made no application to the court until 

two and one-half months after the survey was made and then 

failed to appear or show any cause why their motion should be 

granted.
ARK.] MCENTIRE V. ROBINSON 1123 

Appeal from Jefferson Chancery Court, Joseph 

Morrison, Chancellor ; affirmed. 

Brockman & Brockman, for appellants. 

George Howard, Jr., for appellee. 

JOHN A. FOGLEMAN, Justice. We remanded this case 

to the chancery court with directions to determine the 

boundary line dividing lands owned by appellants and 

those owned by appellee. McEntire v. Robinson, 243 

Ark. 701, 421 S. W. 2d 877. Pursuant to the mandate, 

the chancery court entered a decree. It was based upon 

an agreement between the parties that the line be established 10 feet west of appellee's house and run at a right 

angle to the north boundary line between the lands of the 

respective parties. This decree directed that appellee 

Robinson remove the fence then existing on or before 

January 1, 1969, and relocate the same on the boundary 

line fixed by the court pursuant to the agreement of the 

parties. On February 21, 1969, appellants filed a motion 

that the court authorize them to have a survey made, at 

their expense, to verify a survey made by one E. A. 

Jack Harris at the instance of appellee. The significance 

of the motion lies in its allegation that appellants and 

their surveyor should be authorized to enter upon appellee's lands for the purpose of making this survey. 

Written notice of hearing on this motion at 3:00 p.m. 

on February 24, 1969, was given appellee by appellants' 

attorneys. At this hearing, the chancellor denied appellants' motion. This appeal comes from the order of deniaL

Appellants' sole point for reversal is that the denial of their motion was an abuse of discretion on the 

part of the chancellor. We do not agree. 

None of the appellants appeared when the motion 

was called for hearing nor did they subsequently make 

any appearance or offer any excuse for their non-ap-
1124	MCENTIRE v. ROBINSON [247 

pearance. The hearing was not commenced until the 

court had awaited their appearance for twenty minutes 

after the hour specified. At the outset, the court called 

upon appellants' attorney to proceed, as the moving 

party, to offer evidence in support of the motion. When 

he did not do so, the chancellor examined appellee, who 

was subsequently cross-examined by appellants' attorney and examined by his own attorney. Robinson testified that he employed Harris, the County Surveyor of 

Lincoln County, to survey the line in accordance with 

the court's decree. The reason he gave for employing 

this surveyor was that he had been surveying for Mr. 

McEntire' for about 25 years. According to Robinson, 

when Harris came down to make the survey he sent 

Harris to get McEntire and his son, and they went along 

on the survey. He also stated that McEntire furnished 

iron stakes and had his stepgrandson2 put them down 

after the line was run. These were placed in the ground 

under the direction of McEntire, and Robinson said they 

were still standing. 

Appellant called Mr. John Harris Jones, one of the 

attorneys for the McEntires, as a witness. Jones testified that he received a call from McEntire and Harris 

on December 4, 1968, the date Robinson said the survey 

was made. He talked to both on the same telephone call. 

He related that he advised McEntire not to try to prevent the survey because Robinson had a right to survey 

his own boundary. 

Since appellee was charged with responsibility of 

moving his fence to the correct line prior to January 

1, 1969, since one of the appellants caused iron stakes 

indicating the line established by the Harris survey to 

be placed in the ground, and since appellants made no 

application to the court until two and one-half months 

after the survey was made and then failed to appear 

1We are unable to say which of the appellants was being referred to in this testimony. 

2This person is also referred to as McEntire's "grandson-inlaw."
ARK .] 1125 

and show any cause why their motion should be granted, 

there was no abuse of discretion on the part of the 

chancellor. 

This does not mean that appellants cannot cause 

whatever survey they desire to be made at their own 

expense, so long as it is done without trespass on the 

lands of the appellee, or that the line established by the 

Harris survey i s necessarily correct. 

The decree is affirmed.