¶1dissenting. The trial judge did not, as I read his opinion, make a finding of excusable neglect; his decision rested on a different ground. On February 13 the defendant had filed two pleadings, an answer and a motion to strike the complaint for want of verification. On February 17 the plaintiffs in turn filed two pleadings, a response to the motion to strike the complaint and a request for judgment by default. The trial court held that the plaintiffs, by responding to the defendant’s motion to strike, had waived the defendant’s delay in pleading to the complaint. I do not agree with the trial court’s reasoning; but it seems unnecessary to discuss the point, since the majority have not adopted the lower court’s position in the matter.
¶2The majority opinion suggests two reasons for permitting the defendant to file his answer out of time. First, it is said that when the parties agreed for the case to be set on February 17, “Mr. Gibson was certainly lulled into a feeling of security that the case would not be tried before February 17 th.” Perhaps so, but how is that fact material? Under the statute the defense must be filed on the twenty-first day, aud it makes no difference that counsel may know with certainty that the case cannot be tried for Aveeks or even months. The date of trial has nothing to do with the time for answering the complaint. By their intimation to the contrary the majority have most unfortunately unearthed the ghost of the very statutes that were repealed by Act 49 of 1955.
¶3There is left only the majority’s second suggestion, that Mr. Gates waived a compliance with the statute by agreeing that his clients might be examined without the necessity of the defendant’s filing a written motion for such an examination. It seems plain enough that the defendant’s oral motion would not alone have prevented a default judgment, because (a) our practice does not recognize oral pleadings, Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439; and (b) Act 53 of 1957 refers to the filing of an appearance or pleading, which undoubtedly contemplates a written instrument. It follows, then, that the sole basis for a finding of excusable neglect is the fact that Mr. Gates said that a written motion for a physical examination would be unnecessary. I find it impossible to believe either that Mr. Gates intended by his statement to grant an extension, which must have been indefinite as to time, for the filing of an answer, or that Mr. Gibson could excusably treat the statement of his adversary as an assurance that the defendant’s answer need not be filed within the time allowed by law.
¶4It is with regret that I record my disagreement with the majority; we all have an understandable aversion to holding that a litigant should suffer a default judgment on account of his lawyer’s failure to file an answer promptly. But the defense offered no testimony whatever in response to the plaintiffs’ motion for a default judgment. Thus there is nothing to show that the neglect was excusable, and in these circumstances I am not willing to say that the plaintiffs should be penalized because their attorney extended a commonplace professional courtesy to his opponent.