This is a proceeding under the statute to vacate a default decree after the term, for unavoidable casualty. Ark. Stats. 1947, § 29-506. The defendants, who had filed an answer in the case, assert unavoidable casualty in that their attorney, Mr. Gibson, did not know that the case was set for trial on the day that the default decree was rendered. The chancellor concluded that no unavoidable casualty had been shown and therefore refused to vacate the decree.
In the original case the plaintiff, represented by Mr. Drew, filed suit to quiet her title to sixty acres of land. The regular chancellor, Judge Merritt, announced his disqualification, and Mr. W. K. Grubbs, Sr., was elected special chancellor. As of April 5, 1959, the special chancellor overruled Mr. Gibson’s demurrer to the complaint and granted the defendants ten days for further pleading.
The special chancellor and the two attorneys met in the courtroom on April 23. Mr. Drew asked for a default judgment, as the defendants had not filed a pleading within the time allowed. This request was denied for the reason that Mr. Gibson had not received a copy of the order overruling his demurrer, and he was granted until April 25 to file his answer, which was to be a general denial. The answer was later filed within this additional time.
After the special chancellor denied Mr. Drew’s request for a default judgment the three men discussed the selection of a date for trial. Both Mr. Grubbs and Mr. Drew understood that May 18 was definitely agreed upon as the trial date. Later that day, April 23, Mr. Grubbs prepared an order reflecting the court’s action and reciting that the case was to be tried on May 18, but Mr. Gibson did not receive a copy of that order. On May 18 Mr. Drew appeared in court with his client and some twenty witnesses, but Mr. Gibson and his clients did not appear. The decree recites that after waiting *978four hours for the defendants to appear the special chancellor heard the case upon the plaintiff’s evidence and found the issues in her favor.
At the hearing upon the' complaint to vacate the decree Mr. Grubbs and Mr. Drew testified as we have indicated, that on April 23 they aiid Mr. Gibson selected May 18 as the day for trial,. and the presiding chancellor, Judge Launius,' so found'. Mr. Gibson does not question the good faith of. Mr. Grubbs and Mr. Drew in the matter; he'simply states that he did not understand that any date for trial was definitely selected on April'23. Upon this basis it is argued that there was actually a misunderstanding between counsel, which constitutes an unavoidable casualty. Baskin v. Aetna Life Ins. Co., 190 Ark. 448, 79 S. W. 2d 724.
If the record contained no thing, except the testimony that we have mentioned we might well be in a position to reconcile the statements of these three honorable members of the bar by concluding that a misunderstanding occurred. Unfortunately there is an insurmountable obstacle in the way of such a disposition of the case.
After the filing of the motion to vacate the decree the plaintiff served a request that the following facts, among others, be admitted by the defendants: “That at the hearing of April 23, 1959, the Special Chancellor, the Hon. W. K. Grubbs, Sr.; solicitor for the defendants, W. G. Brown and Vivian Brown, the Hon. John F. Gibson; and solicitor for plaintiff, Elza Lewis, William H. Drew, all checked their calendars and found that this 'cause would be tried May 18, 1959.” To this request the defendants filed an unverified response stating that they were not present on April 23 and “cannot truthfully admit or deny” the requested admission of fact.
The statute, so far as it is relevant here, is explicit in providing that a request for an admission is deemed admitted unless the party to whom the request is directed files a sworn statement either denying the matter or setting forth in detail the reasons why he cannot truthfully admit, or. deny the matter. Ark. Stats., § 28-358. *979In White River Limestone Products Co. v. Mo.-Pac. R. Co., 228 Ark. 697, 310 S. W. 2d 3, we considered a situation identical to the present one and held that- an unverified response does not comply with the statute and hence amounts to an admission of the request. It follows that in the case at bar the appellee is entitled to insist, as she does, that the agreed setting of the case stands as an admitted fact. Thus it is beyond our authority to make a contrary finding.
The appellants’ remaining arguments do not establish a valid ground for reversal. It is contended that the chancery court was not legally in session on May 18, because Judge Merritt had entered- an order recessing court until May 25. But this order did not really conflict with the special chancellor’s order setting the trial for May 18, and in any event the statute now provides that the chancery court is always in session, that two or more chancery courts of the same circuit may be concurrently in session, and that an order fixing the time and place when the court will be in session does not preclude the court from transacting business at other times and places. Ark. Stats., §.22-408.1.
It is also contended that the special chancellor was without power to set the case for trial until after the issues had been joined by the filing of the defendants’ answer. Act 70 of 1957, Ark. Stats., § 27-1719; and Act 244 of 1957, regulating the practice in this particular chancery circuit. We do not find in either act any language suggesting that the parties and the court cannot agree upon a trial date before the filing of the answer or that a trial held pursuant .to such an agreement is a nullity.
Affirmed.
Holt, Robinson, and Johnson, JJ., dissent.