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Frank Holt, Justice.
The appellant is the surety on the payment and performance bonds for a prime contractor on construction projects for the Little Rock Municipal Water Works and the Mountain Pine School District. The prime contractor was adjudicated bankrupt and appellant undertook full responsibility for completion of the projects pursuant to its performance bonds. The appellee was the masonry subcontractor for the prime contractor on both jobs. Appellee instituted this action to recover the $8,553.66 balance on the full contract price ($44,300) of the Water Works project and the $9,117 balance of the full contract price ($53,117) on the Mountain Pine project, or a total of $17,670.66, plus a 12% statutory penalty and a reasonable attorney’s fee. In other words, it was appellee’s position that he had fully complied with the contract and was entitled to the balance which would constitute full payment. By appropriate pleadings, appellant controverted appellee’s action.
The trial court, sitting as a jury, resolved the issues and awarded appellee the full balance allegedly due on the contract, plus the 12% penalty and attorney’s fee. The court found the amount of incompleted work by appellee subcontractor on both projects was “fairly negligible;” appellee “has not only been willing but has done everything he has been asked to do;” and appellant had “waived any right to complain about” any unfinished work since it had not asked appellee to perform. However, the court noted concern about the “final payment” contract provisions because “the prime contractor won’t be liable to pay the subcontractor the last Ten Percent **** until the prime contractor receives final payment.” The court then concluded that it was the prime contractor’s and not the subcontractor’s fault that the final payment had not been made.
For reversal the appellant contends there was no substantial evidence to support the court’s finding that the appellee subcontractor was entitled to the full amount for which he sued. We agree because the appellee subcontractor had not completely fulfilled his contracts. He testified that unless he was furnished a “punch list” showing the architect’s requirements, he considered his contracts completed. However, he testified further that the architect had acquainted him with imperfections of his work on both projects and that he, appellee, had indicated he “would take care of it.” He estimated that it would cost $200 to $300 to complete his “work” on the Water Works project and “on the Mountain Pine, I don’t know what work they are wanting me to do, so I can’t say.”
Viewing the evidence, as we must do on appeal in the light most favorable to the appellee, we must hold the evidence is insubstantial to support a finding for the full balance due on the terms of the contracts. However, there is sufficient evidence, based upon a fact issue,which “is not disputed” by appellant, that the appellee has substantially complied with the terms of his contracts. In such a situation, we have said:
When the work has been done substantially in accordance with the terms of the contract, or when there has been an acceptance of the work by the defendant, the plaintiff may, notwithstanding defects therein, recover the contract price, less the costs of correcting such defects.
Fitzgerald v. La Porte, 64 Ark. 34, 40 S.W. 261 (1897); Thomas v. Jackson, 105 Ark. 353, 151 S.W. 521 (1912); and Roseburr v. McDaniel, 147 Ark. 203, 227 S.W. 397 (1921). 13 Am. Jur. 2d., Building and Construction Contracts, § 41, reads in part:
A provision in the contract that the last payment for the work is to be made when the work is completed does not take the case out of the rule.
In the case at bar, the appellee admitted that it would cost $200 to $300 to complete his subcontract on the Water Works project. He could not say what it would cost on the Mountain Pine job. On the latter project, the appellant’s estimate of $831 is uncontradicted. Therefore, the total cost for the completion of both projects would be $1,031 when viewed most favorably to the appellee.
We find no merit in appellant’s contention that until it receives final payment it is not obligated to pay appellee. The evidence viewed most favorably to the appellee is that he had substantially discharged all of his obligations as a subcontractor; in fact, “it is not disputed” by the appellant that the appellee had “substantially” completed his work; delay was caused when the prime contractor became bankrupt because of “mismanagement,” requiring the.appellant to perform the prime contractor’s responsibilities; only minor corrections remain to be done on the buildings; they are occupied by the owners; the appellee subcontractor is willing to complete his work “without delay” on each project; and, as indicated, the cost of correcting any defects is small in comparison to the total contract price. In these circumstances, we agree with the trial court that it is not the subcontractor’s fault that the final payment has not been made to the appellant.
We find no merit in appellant’s contention that the court erred in excluding testimony with respect to the custom of the trade where a contractor charges back against his subcontractor for damages incurred because of the subcontractor’s delay in performance. A sufficient answer is, as the trial court found, that the written contracts contained no such provision. To the contrary, the contracts specifically provided that the prime contractor has the right to employ others, after notice to the subcontractor, to prevent any material delay due to the subcontractor and charge the cost to the subcontractor’s account.
The appellant asserts the court erred in awarding a statutory penalty and an attorney’s fee. It is well established that the plaintiff must recover the amount for which he sues in order to come within the purview of Ark. Stat. Ann. § 66-3229 (Repl. 1966). Fidelity Phenix Fire Ins. Co. v. Roth, 164 Ark. 608, 262 S.W. 643 (1924); and Smith v. U.S.F. & G. Co., 239 Ark. 984, 395 S.W. 2d 749 (1965). In the case at bar, as discussed, the appellee has not recovered the full amount sought and, therefore, is precluded from invoking the terms of this statute.
In accordance with our foregoing discussion, if appellee offers a remittitur of $1,031 plus the statutory penalty and attorney’s fee to appellant within seventeen calendar days, the judgment, so reduced, is affirmed. Otherwise, it is reversed and remanded.
Affirmed as modified. | [
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Lyle Brown, Justice.
This is a workmen’s compensation death claim which grew out of a heart attack to John R. Pettyjohn, claimant’s husband. The commission allowed the claim and the circuit court affirmed. Appellant contends that the award is not supported by sufficient, competent, corroborative evidence. The basis of the point for reversal is that claimant did not meet her burden of corroborating declarations of the deceased employee. Ark. Stat. Ann. § 81-1327 (a) (Repl. 1960) reads in part: “Declarations of a deceased employee concerning the injury in respect of which the investigation or inquiry is being made, or the hearing conducted, may be received in evidence, and may, if corroborated by other evidence, be sufficient to establish the injury”. We find there was sufficient corroboration and we affirm the circuit court.
Employees of appellant testified as to the work activities of Pettyjohn on his last trip as the operator of a tractor-trailer rig. On May 1, and 2, 1972, he drove a large tractor-trailer rig from Fort Smith, Arkansas to St. Louis, Missouri. There he assisted in the unloading of 13,367 pounds at his first destination, and then unloaded 6,968 pounds represented by 447 cartons at his second destination. He drove 829 miles on this last trip. He drove back to Fort Smith on May 2, and parked his truck at approximately 10:30 p.m. He entered the hospital on May 3, 1972, at approximately 5:00 3.m. suffering severe chest and arm pains. He died on May 6.
A fellow employee made the same trip in another truck and helped in the first unloading. That employee said Pettyjohn became ill while the unloading was being performed and suspended work for five to eight minutes. Then at a truck stop on the way back, Pettyjohn emerged from a rest room and told his co-worker he had diarrhea. Pettyjohn related to his wife and doctor that he experienced severe pain in the arms and chest on his trip to and from St. Louis and stated that the pain was such that he thought he would not make it back to Fort Smith.
Appellant’s traffic manager testified that during the last three weeks of Pettyjohn’s employment he unloaded 49,707 pounds of merchandise and drove the tractor-trailer about 2,-500 miles.
Dr. McMinimy testified that the extent of exertion attributed to Pettyjohn “definitely aggravated his heart condition”. “The unloading of the material would aggravate or precipitate the myocardial infarction. *** “The classic description of angina pectoris is exertional pain; pain comes on with exertion. This man was exerting himself driving that truck. He undoubtedly, in driving the truck from Fort Smith to St. Louis and from St. Louis back to Fort Smith, probably had a certain amount of tension and so on, and if he was having pretty severe chest pain, where he wasn’t sure he was going to get home, he probably was pretty anxious and pretty frightened. Which, I’m sure, also had its bad effect on his angina pectoris. There is no question that this amount of exertion aggravated the man’s heart problem. *** My opinion is that his work definitely aggravated his heart condition.” Dr. McMinimy had within his knowledge, not gained by hearsay from the patient, the pressurizing labors exerted by Pettyjohn, a man with a medical record of heart condition. It was his medical opinion that the strain of the labor brought on the fatal attack. We think it cannot be argued with rationality that the cause of death was established solely by the statements of Pettyjohn.
Affirmed.
Harris, C.J., and Fogleman and Jones, JJ., dissent. | [
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John A. Fogleman, Justice.
Appellant Stanley seeks post-conviction relief from his sentence to life imprisonment for first degree murder of his step-father. The judgment of conviction was appealed to this court. See Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72. Permission to proceed under Criminal Procedure Rule 1 was granted by this court on March 4, 1974. Stanley’s petition was based upon his contention that a pretrial confession made by him was improperly admitted into evidence because there was no knowing and intelligent waiver of his privilege to remain silent and to have the advice of counsel before making any statement. Concededly, no objection on this ground to the introduction of appellant’s statement was made at his trial. Nc assertion was made on appeal that this evidence was constitutionally infirm. The circuit court proceeded under Criminal Procedure Rule I (C) in denying Stanley’s petition. We affirm.
As a basis for his present contention, Stanley alleged that: he was 14 years of age and a student in the ninth grade at the time; he was not given the opportunity to consult with his mother and no attempt was made by the police to obtain her permission to question him; the officer interrogating him informed him that if he gave a statement nothing would happen to him other than being sent to the state hospital.
The trial judge entered extensive and detailed findings of fact and conclusions of law, after having reviewed the transcript of Stanley’s trial. This same judge presided at that trial. The circuit judge found considerable evidence in the transcript of the trial to support a finding that the statements made by Stanley were freely and voluntarily made and that he was possessed of adequate intellectual capacity to knowingly and intelligently waive his right to remain silent. Certain statements in the state’s brief in the court below were quoted in the circuit judge’s findings because of their aptness. For the same reason, we quote a substantial part of those adopted by him, viz:
The petitioner’s defense at the trial was insanity. In view of the overwhelming evidence against the petitioner it is clear that insanity was the only defense reasonably available to the petitioner. A careful examination of the petitioner’s written statement now under attack shows that it complements the testimony of defense witness, Dr. Donald Chambers, the psychiatrist who testified to the petitioner’s insanity. In the written statement the petitioner states that since his grandmother died he had missed her so much and would get a feeling of ‘kill, kill, kill’ in his head. At the end of the petitioner’s statement he talks about what was going through his mind at the time his mother arrived at home and after he heard Detective Davis say that his stepfather was dead. He said, “I don’t know why I did it. There was something in me that just says ‘kill, kill, kill’ ”.
On direct examination Dr. Donald Chambers testified that the death of petitioner’s grandmother created severe depression in the petitioner. The petitioner’s statement is consistent with that diagnosis. Dr. Chambers went on to testify that the death of petitioner’s grandmother produced homicidal preoccupation and ruminative thinking which occurred several weeks prior to the shooting of Mr. Reynolds. Dr. Chambers described ruminative thinking as a few thoughts which just continually circle in the mind; one single idea, one single effect attached to the idea. The portion of the petitioner’s statement where he said he had the thought “kill, kill, kill” certainly complements the testimony of Dr. Chambers. A complete review of the record in this case shows why defense counsel did not ask for a Denno hearing and did not object to the introduction of the petitioner’s written statement at the time of trial. This was obviously a part of defense counsel’s strategy in interposing the defense of insanity. *****
The record in the case at bar as reviewed in it [s] entirety is replete with evidence of the petitioner’s guilt. The admissibility of much of the evidence was not subject to reasonable attack by the defense counsel. In the face of all of these things defense counsel was forced to develop a strategy for the trial of the case. The only reasonable solution available was to interpose the defense of insanity. The statement now questioned by the petitioner was self-serving in many respects in that it complemented the psychiatric testimony offered on behalf of the petitioner.
It is true that petitioner’s defense counsel did not object to the admissibility of the statement now under attack, but not because of incompetence. On the contrary, the failure to object came about after careful preparation for trial and the development of prudent trial strategy by counsel. During the cross examination of Detective Davis, defense counsel very alertly brought out that the portion of the statement which complemented the psychiatric testimony was in the own words of the petitioner rather than in the words of the detective. This indicates thorough preparation and trial by preconceived strategy by laying the groundwork for the insanity defense through the state’s very first witness. This strategy is in no way shocking to the conscience nor does it make a mockery of justice.
The record of the trial sustains these statements. While we might not be fully justified in saying that the only reasonable strategy available was the defense of insanity, we can say with assurance that it appears to have been the most reasonable course, and that it was pursued with unusual vigor by appellant’s appointed counsel, both in the trial court and the appellate court. We may add that this attorney also sought to exclude certain evidence which he considered inflammatory on the basis that Stanley conceded at the trial that he had committed the act of fatally shooting his stepfather. Expert witnesses on the defense of insanity related incriminating statements of Stanley to them on direct examination and at least one of them included the gist of a statement to a police officer as a factor in evaluating Stanley’s mental condition. Thus it is clear that this attorney sought to use the incriminating statements of Stanley for advantageous purposes in support of the plea of insanity and in an effort to exclude damaging evidence.
Although the circuit judge felt that an attack on the competency and effectiveness of counsel was inherent in the allegations of Stanley’s petition, we consider this to be no more than peripheral. It is quite significant to us that neither petitioner, his trial court counsel, nor his attorney on appeal make any such assertion. But we do agree that, in order for Stanley to succeed on his petition it would be necessary that he make such a showing. The statement on his behalf most nearly approaching such an argument is the statement of appellant’s brief here that the record is devoid of evidence to show that Stanley joined with his attorney in waiving his right to challenge the “confession”. In determining a petitioner’s entitlement to a hearing, however, the court is limited to the allegations of the petition before it. In this case, the, obvious strategy employed, the obvious wisdom of that strategy, and the fact that appellant has never sought to assert any reason for his not having made any objection to the introduction of his statements in the trial court on the grounds now asserted — particularly after three members of this court voted to deny him permission to proceed on the present petition for failure to do so — are sufficient basis for the denial of an evidentiary hearing. See Clark v. State, 255 Ark. 13, 498 S.W. 2d 657; Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668; Coleman v. State, 257 Ark. 538 (27 Jan. 1975), 518 S.W. 2d 487.
The judgment is affirmed. | [
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Conley Byrd, Justice.
The appellant Pete Smith Company, Inc., contracted with the appellee, City of EJ Dorado, Arkansas, to construct an 18-hole golf course for $230,329.88. After appellant had performed all of the clearing and dirt work in accordance with the contract specification, a torrential rainfall of 12.47 inches occurred in a 10 hour period. Substantial erosion resulted from this rainfall. The undisputed testimony is that it will cost in excess of $60,000 to restore the golf course to its condition prior to the rain. Appellant, by way of a declaratory judgment, sought relief under the doctrine of “Commercial Frustration.” The trial court denied relief. Appellant appeals raising only the issue of Commercial Frustration.
The commercial frustration doctrine is set forth in Restatement of Contracts § 288 (1932), as follows:
“Where the assumed possibility of a desired object or effect to be attained by either party to a contract forms the basis on which both parties enter into it, and this object or effect is or surely will be frustrated, a promisor who is without fault in causing the frustration, and who is harmed thereby, is discharged from the duty of performing his promise unless a contrary intention appears.”
The Restatement wording of the doctrine is criticized by Corbin, see 6 Corbin on Contracts § 1323 n. 19 (1962).
Judge Riddick stated the doctrine, in Pacific Trading Co. v. Monton Rice Milling Co., 184 F. 2d 141 (8th Cir. 1950), as follows:
“Under the doctrine of frustration as relieving a party from its contractual obligations, performance remains possible but is excused whenever an event not due to the fault of either party supervenes to cause a failure of consideration or destruction of the expected value of performance. ...”
Also, the doctrine is recognized between buyers and sellers of goods under the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-615 (Add’n 1961).
6 Corbin on Contracts § 1361 points out that a partial frustration by subsequent events is less likely to be held to discharge a contractor from duty than is total frustration. In the cases upon which appellant relies — i.e. Butterworth v. Tellier, 185 Ark. 357, 47 S.W. 2d 593 (1932) — there was a total frustration.
The contract before us here provides:
“Section 1, INSTRUCTIONS TO BIDDERS, § 1-02, Local Conditions: Bidders shall read and examine the Specifications and Plans, and make their own estimates of the existing facilities and difficulties which will attend the execution of the work called for by these Contract Documents, the Specifications and the Plans, including local conditions, uncertainty of the weather, and all other contingencies. Bidders shall satisfy themselves by personal examination of the location of the proposed work, and by such means as they may choose, as to actual conditions and requirements. Information derived from the Plans and Specifications or from the Engineer or his assistants shall not relieve the bidder of this responsibility.
Section 2, GENERAL CONDITIONS OF THE SPECIFICATIONS, § 2-06, The Contractor: It is understood and agreed that the Contractor has, by careful examination satisfied himself as to the nature and location of the work, the information of the ground, the character, quality and quantity of the materials to be encountered [in] prosecution of the work, the general location conditions, and all other matters which can in any way affect the work under this Contract. No verbal agreement or conversation with any office, agent or employee of the Contracting Authority, either before or after the executing of this contract shall affect or modify any of the terms or obligations herein contained.
Section 2, GENERAL CONDITIONS OF THE SPECIFICATIONS, § 2-13, Protection of Work and Property: The Contractor shall continuously maintain adequate protection of all his work from damage and shall protect the Contracting Authority’s property from injury or loss arising in connection with the Contract. We shall make good any damage, injury, or loss, except such as may be directly due to errors in the Contract Documents or caused by agents or employees of the Contracting Authority. He shall adequately protect adjacent property as provided by law and the Contract Documents. He shall provide and maintain all passageways, guard fences, lights, or other facilities for the protection required by public authority of local conditions.”
Thus, from the foregoing it follows that the chancellor did not err in denying appellant relief under the commercial frustration doctrine whether such denial be placed upon the theory that the contract expressed a contrary intent or the theory that the doctrine is not applicable in the event of only a partial frustration that only increases the cost of performance.
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J. Fred Jones, Justice.
This is an appeal by Tommy L. Wilkins from an order of the Union County Circuit Court denying his petition for habeas corpus in connection with an extradition proceeding.
The facts appear as follows: On or about March 16, 1972, an automobile was stolen from an El Dorado automobile agency in Union County. The theft was reported to the El Dorado Police Department on March 18 and a description of two suspects was furnished to the police by the owner of the automobile. By matching the description with individuals known to the police department, one William D. Lang was taken into custody in Little Rock by Little Rock police officers on March 20, 1972, and was turned over to the El Dorado officers on the same day.
Lang gave a statement in which he admitted the theft of the automobile and also admitted his participation in an armed robbery in New Mexico. Lang’s statement is not in the record but he apparently implicated the appellant Wilkins because information was filed and warrants issued on March 20 charging both Lang and Wilkins with the automobile theft. Wilkins was not apprehended until March 27, 1972, when he surrendered himself to Detective Captain Monroe Taylor of the El Dorado Police Department, who served the arrest warrant on Wilkins in his attorney’s office.
Also on March 20, 1972, a criminal complaint was filed with the magistrate of Hidalgo District, New Mexico, charging Wilkins with having committed the crime of robbery and on the same date a criminal arrest warrant was issued against Tommy Wilkins. On April 7, 1972, the assistant district attorney of Hildago County, New Mexico, filed an application for extradition for Tommy Wilkins with the Governor of New Mexico. The Governor of New Mexico granted the application and on April 12 made formal request of the Governor of Arkansas that Tommy Wilkins be apprehended and delivered to the sheriff of Hidalgo County, New Mexico, for return to that state. On April 18 the Governor of Arkansas honored the requisition and ordered Tommy Wilkins delivered to the New Mexico sheriff for return to that state.
Apparently by agreement of the parties Wilkins was first tried on the charges pending against him in Arkansas. After those charges were disposed of he filed his petition for habeas corpus on November 9, 1972, in the Union County Circuit Court and it was the denial of that petition which resulted in this appeal. From the argument presented in behalf of the petition in the trial court, and from the appellant’s argument and brief on this appeal, it appears that the essence of the appellant’s contention is set out in the points he has designated as follows:
“Since the arrest warrant and its supporting affidavits upon which extradition is grounded are not based upon credible hearsay, they do not properly charge Tommy Wilkins with a crime under the law of New Mexico and he is not, therefore, subject to extradition.
It is not clear from the requisition and supporting papers that the Tommy Wilkins wanted in New Mexico is the same Tommy L. Wilkins before the court and extradition should not issue without proof of identity.”
The appellant agrees the general law pertaining to extradition to be that after the requisition has been honored by the Governor of the asylum state, the circuit court can consider a petition for habeas corpus for only two purposes, i.e., to establish the identity of the accused and to determine whether he is a fugitive, if the requisition shows facts necessary to return the fugitive. Glover v. State, 257 Ark. 241, 515 S.W. 2d 641 (1974). The appellant argues, however, that the extradition warrant issued in New Mexico was based on erroneous information; that the hearsay information upon which the warrant was issued in New Mexico was not credible hearsay and for that reason the warrant was void. Our own statute, Ark. Stat. Ann. § 43-3003 (Repl. 1964), pertaining to such affidavit provides in part as follows:
“The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the Executive Authority making the demand, which shall be prima facie evidence of its truth.”
The affidavit on which the New Mexico warrant was issued and which is under attack on this appeal was subscribed and sworn on April 17, 1972, and appears in the record as follows:
“CHARLES C. GRAY, being of lawful age, being first duly sworn on oath deposes and says:
That information and belief on which he filed the charge of armed robbery against Defendant is as follows:
1. That on Friday, March 17, 1972, he interviewed Ida Ornelas, who was present during a robbery of the Circle H Grocery Store in Lordsburg, Hidalgo County, New Mexico, who stated to him that two male subjects came into the store; one subject had dark brown hair, a moustache, wearing dark square sun glasses, a blue shirt, about twenty years old; the second subject had blonde hair, a yellow shirt with long sleeves and also was about twenty years old. The two subjects came into the store and one went to each side of the counter; one of them grabbed the cashier and threatened her with a black knife which he held against her side. Ida Ornelas further stated that she then rang the cash register and gave the boys all the money there was in there.
2. That on March 20, 1972, I talked to Captain Monroe Taylor, El Dorado Police Department, El Dorado, Arkansas, who stated to me that William Danny Lang and Tommy Wilkins had been picked up by the Arkansas Police and had told that officer that they had robbed a grocery store in Lordsburg, Hidalgo County, New Mexico, on March 17, 1972. Captain Taylor also described the subjects to this Officer and his description matched the description of the robbers given to your Affiant by Ida Ornelas. Affiant knows of his own knowledge that no grocery store, other than the Circle H Grocery Store, was robbed in Lordsburg, Hidalgo County, New Mexico, On March 17, 1972.
3. That on March 20, 1972, your Affiant caused to be made a Criminal Complaint before Rosa Lina Salinas, Magistrate, Hidalgo County, New Mexico, charging the said Tommy Wilkins with the crime of: ‘Robbery while armed with a deadly weapon,’ in violation of 40A-16-2, N.M.S.A., 1953 Compilation, as amended, which is a felony.”
Sheriff Leroy C. McCarty also filed an affidavit setting out that on March 20 he received the warrant charging Wilkins with robbery on the complaint of Charles C. Gray, and his affidavit then states:
“That at the time the above Criminal Complaint was filed the defendant, Tommy Wilkins, was without the State of New Mexico and has not returned thereto and at the present time is detained by Captain Monroe Taylor, El Dorado Police Department, El Dorado, Arkansas, who informed your Affiant on the 21st day of March, 1972, that the said Tommy Wilkins was taken into custody upon this charge.”
The appellant contended before the circuit court, and contends on his appeal here, that the affidavit of Officer Gray is fatally defective in that Mr. Gray did not actually talk with Captain Monroe Taylor on March 20, 1972, and that in fact the appellant Wilkins was not in custody at the time the affidavit was made. The appellant contends that this affidavit of Sheriff McCarty was in error in that the appellant was not in fact detained by Captain Taylor on March 21, 1972, and that Captain Taylor did not in fact so advise Sheriff McCarty. The appellant contends that because of these discrepancies, the warrant for his arrest and the extradition proceedings emanating therefrom were invalid.
In support of his argument on his first point, the appellant points out that the New Mexico statute, N.M.S.A. § 41-23-13, Rule 14, reads as follows:
“[P]robable cause for issuance of a warrant. The showing of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.” (Appellant’s emphasis).
The appellant apparently intended New Mexico statute, N.M.S.A. § 41-23-74 (Supp. 1973), Rule 14, but we take judicial notice that these rules of criminal procedure in New Mexico were adopted by Supreme Court rule on May 3, 1972, and did not become effective until July 1, 1972. Be that as it may, we find no merit in the appellant’s contention on this point.
The New Mexico warrant was actually issued on the affidavit of Charles C. Gray and the warrant had already been issued and placed in the hands of Sheriff McCarty when Sheriff McCarty made his affidavit. Officer Gray stated in his affidavit that he talked to Captain Monroe Taylor of the El Dorado Police Department March 20, 1972, and was told that William Danny Lang and Tommy Wilkins had been “picked up by the Arkansas Police and had told that officer that they had robbed a grocery store in Lordsburg, Hidalgo County, New Mexico, on March 17, 1972.” He also stated that Captain Taylor described the subjects and the description matched the description of the robbers as described by the robbery victim. It must be remembered that it was the description of the suspects given to Captain Monroe Taylor that resulted in the larceny warrants being issued for Lang and Wilkins, and that resulted in Lang being “picked up” by Little Rock police officers in Little Rock. The affidavit of Charles C. Gray does not state that Captain Taylor “picked up” Danny Lang and Tommy Wilkins. It simply says that they were picked up by “the Arkansas Police and had told that officer that they had robbed a grocery store in Lordsburg. ...”
Most important, however, as we view the record in this case, the appellant fell far short of proving that the affidavit of Charles C. Gray was erroneous in any respect. Captain Taylor had retired as a detective from the El Dorado Police Department at the time he testified and he testified from memory refreshed by such information as was contained in the El Dorado Police file folders. Excerpts from Captain Taylor’s testimony on direct examination by appellant’s attorney appear as follows:
“Okay. Okay now, you can use any part of that you want to, [referring to police record file] Mr. Taylor, to refresh your memory because I’m going to ask you some questions and I am looking at an affidavit signed by Charles C. Gray, who is identified in this proceedings as chief of police of Lordsburg, New Mexico. Now is there anything in that file that can tell you about whether or not you’ve talked by phone to a Charles C. Gray of Lordsburg, New Mexico?
A. I don’t remember the phone conversation in general, but apparently I did. I wrote his name down here, a phone number, and this is or should be the phone number. I just don’t remember word for word what the conversation was.
* * *
Q. Do I understand you to say that you have no memory yourself or present memory of any conversation with Charles C. Gray of Lordsburg, New Mexico?
A. I just don’t remember conversation.
Q. That’s what I understand. It may have happened, you just don’t remember it?
A. That’s right.
* * *
A. I can’t positively say that I remember it, any conversation.
Q. All right. Do you remember — let me read you this, Mr. Taylor, this is an affidavit filed by Charles C. Gray who’s identified as chief of police of Lordsburg, New Mexico. This is an affidavit he signed on April 7, 1972, and in paragraph 2, I’m reading you, and listen, he says, ‘That on March 20, 1972, I talked to Captain Monroe Taylor, El Dorado Police Department, El Dorado, Arkansas, who stated to me that William Danny Lang and Tommy Wilkins had been picked up by the Arkansas Police and had told that officer that they had robbed a grocery store in Lordsburg, Hidalgo County, New Mexico, on March 17, 1972. Captain Taylor also described the subjects to this Officer and his description matched the description of the robbers given to your affiant by Ida Ornelas.’ Do you remember any of that conversation?
A. It’s just been so long, I just don’t remember it.”
Captain Monroe Taylor testified that he probably would have known Wilkins by sight had he met him on the street but that the first dealing he had with him was when he arrested him in his attorney’s office. He said that he just knew Wilkins when he saw him, and that they might have a picture of Wilkins at the police department but he does not remember whether they did or not. He said that to his knowledge he had never arrested Wilkins before he arrested him in the attorney’s office on March 27. He said he had never taken a statement from Wilkins and that Wilkins was not in custody on March 20.
On cross-examination Captain Taylor testified he recalled investigating the automobile larceny charge himself, assisted by Officer Calhoun. He testified that during the course of that investigation he obtained the descriptions of the suspects and one of the suspects was Tommy Wilkins. He said that based on his investigation and the description he had, he decided he had reasonable grounds to arrest Wilkins and also Danny Lang for automobile theft. He said he took a description from Mr. Foster, the owner of the automobile, of some suspicious people who had been on the premises and in the automobile immediately before it was missed from his premises; that he matched these descriptions with some known individuals, and that it was this “match up” with the descriptions of Mr. Lang and Mr. Wilkins that caused him to request the prosecuting attorney’s office to issue a warrant for their arrest on the charge of grand larceny. He said that on March 20, after he received information that Danny Lang was a resident of Little Rock, that information was forwarded to the Little Rock Police Department and Danny Lang was in fact arrested on that date. He said he did not remember at what point he obtained information that there had been a robbery in New Mexico, and did not remember whether he knew a warrant had been circulated at his office at that time. He then testified as follows:
“Q. I want to show you the police file again, and contained in that police file is a statement from William Danny Lang dated March 20, which we’ve all agreed is the proper and correct date that he was arrested. Do you recall this?
A. This is when I first come aware of the armed robbery.
Q. In other words you had access to and did in fact read that statement from Danny Lang?
A. Yes.
* # $
Q. All right, you did have access and you did read Danny Lang’s statement?
A. Yes.
Q. And you knew then based on his statement that a crime had been committed or apparently had been committed by his statement in New Mexico?
A. Yes.
Q. Now then after that information came to you what was done with that information?
A. The Information was relayed on to the officers that had jurisdiction over this armed robbery.
Q. Okay. Do you recall whether or not you yourself would have been the one that initiated that inquiry?
A. I’m sure I must have notified them, Beryl, but I don’t remember the conversation we had.
Q. Well, you were asked a question back on direct examination while ago. I think at this time I’d like to go. into that with you. Is it your testimony today under oath that you did not have a conversation with a person that purported himself to be Charles C. Gray, a police officer in New Mexico, or is it your testimony that you had a conversation but you do not remember all of the details of that conversation?
A. I don’t remember the conversation, period. No part of it.
Q. All right. Do you recall whether or not you got an inquiry back from the State of New Mexico?
A. Yes.
Q. All right, would this have been after the information was given to them by your department?
A. Yes.
Q. And you stated while ago that you think that you must have been the one that initiated that initial call so that they would know what information your police department had.
A. I’m sure I did.
Q. What would be your normal — what would be a normal way for you to transmit this type of information to any other jurisdiction — say in years past, what would be normal?
A. Just pick up the phone and call the officer in charge of the investigation or the —
Q. But in your department what’s been the normal — has it been the person in charge or has it been one of the other detectives?
A. Normally the person in charge.
Q. And you’re that person in charge?
A. Yes.
Q. So if a call had been initiated if you’d been following normal practice that you had used in years past, you being the officer in charge, you would more than likely have made the telephone call?
A. Yes.”
After reading the affidavit again in open court Captain Taylor testified that he could not say that any part of the affidavit, was untrue.
The case of United States v. Flood, 374 F. 2d 554 (2d Cir. 1967) was similar on its facts to the case at bar and illustrates the ordinary scope of review of an extradition warrant. The court in that case said:
“The petitioner complains that the affidavit of Deputy Sheriff Holman, attached to the extradition warrant of the Governor of Florida, was insufficient to support the information and rendered the latter invalid because it was based largely upon hearsay information and that therefore the State of New York had no power to act upon it. But, in considering the sufficiency of the extradition warrant and the papers accompanying it to qualify under Title 18 U.S.C. § 3182, it is not for the asylum state on habeas corpus to pass upon the quality, persuasiveness or weight of the evidential matter on the basis of which the Governor of Florida issued the extradition warrant, for it is solely a question of law whether on the face of the papers accompanying the warrant there was sufficient to say that a crime was ‘substantially charged’ against Vitiello under the laws of Florida and that he was alleged to be a fugitive. The warrant and attached papers in this case were unquestionably sufficient. Appleyard v. State of Massachusetts, 203 U.S. 222, 27 S. Ct. 122, 51 L. Ed. 161 (1906); In re Strauss, 197 U.S. 324, 25 S. Ct. 535, 49 L. Ed. 774 (1905); Munsey v. Clough, 196 U.S. 364, 25 S. Ct. 282, 49 L. Ed. 515 (1905).”
In the Texas case of Ex parte Powers, Tex. Cr. App., 391 S.W. 2d 413 (1965), the Texas Court said:
“In extradition cases it is held that, unless clearly void, the validity of an affidavit or indictment upon which demand for extradition is based and its sufficiency as a criminal pleading will be left to the courts of the demanding state and not of this state.”
See also Ex parte Gray, Tex. Cr. App., 426 S.W. 2d 241 (1968); Ex parte Scott, Tex. Cr. App., 446 S.W. 2d 307 (1969).
In the case of Stuart v. Johnson, Sheriff, 192 Ark. 757, 94 S.W. 2d 715 (1936), a petition for habeas corpus in an extradition proceeding was based on the allegation that the statute of limitations had run on the crime charged, and that there was a variance between the charge as set out by affidavit and the information and proof offered. In that case we said:
“Appellant argues that the charge is barred by limitations. That may be, or she may have been a fugitive so as to prevent the statute bar from attaching. At any rate that is a matter of defense which may be offered in defense of the charge, but not here.
As to the alleged variance in the charge as set out by affidavit and information and proof offered we have nothing to do. Suffice it to say there is a ‘substantial charge’ of a violation of the laws of the demanding State. Section 3, Act No. 126, supra, [Ark. Stat. Ann. § 43-3003 (Repl. 1964)].”
In recognition of our own statute, § 43-3003, supra, we adhere to the reasoning set out by the United States Supreme Court in the case of Pierce v. Creecy, 210 U.S. 387 (1908), wherein the court said:
“. . . the indictment, in order to constitute a sufficient charge of a crime to warrant interstate extradition, need show no more than that the accused was substantially charged with crime. ... If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of states with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the states, and fruitful of miscarriage of justice. The duty ought not to be assumed unless it is plainly required by the Constitution. ...”
This reasoning is particularly applicable as to the affidavit in the case at bar since N.M.S.A. § 41-23-14, supra, is newly adopted and apparently the courts of New Mexico have yet to construe its terms.
The appellant’s second point as to his proper identity merits little discussion in the light of what we have already said. There is no evidence that the appellant had been improperly described or identified by other than his proper and only name. The Governor of Arkansas, by his act in honoring the requisition, found that appellant was a fugitive from justice. In this state of the case the rule seems to be that before the appellant would be entitled to a discharge by court order, the evidence would have to be practically conclusive in his favor. State ex rel. Lewis, Sheriff v. Allen, 194 Ark. 688, 109 S.W. 2d 952 (1937); Letwick v. State, 211 Ark. 1, 198 S.W. 2d 830 (1947). The appellant offered only the evidence that he was not in the custody of the El Dorado police on March 20, 1972, and certainly we do not consider this as evidence which is “practically conclusive in his favor.”
The judgment is affirmed. | [
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FRANK Holt, Justice.
A jury found appellant guilty of burglary and assessed his punishment as a habitual criminal at 31 1/2 years imprisonment in the Department of Correction pursuant to Ark. Stat. Ann. § 43-2328 (Supp. 1973). There was no appeal and appellant now seeks postconviction relief. The trial court conducted an evidentiary hearing and denied the petition. Appellant first contends for reversal, through present court appointed counsel, that the court erred in overruling his motion for a continuance. We cannot agree.
On July 17, 1973, the date of the trial, a continuance was sought by oral motion. It was predicated upon the basis that a witness, who was under subpoena, was “supposedly out of state” and her testimony, in effect, would provide an alibi for the appellant. The case was first set for trial in July, 1972, and later reset for October, 1972, at which time it was continued on the defendant’s motion because of the absence of a material witness. On January 4, 1973, a hearing was scheduled and appellant did not appear. An alias warrant was issued for him and the hearing was rescheduled for January 15, 1973, and again appellant failed to appear. On April 13, 1973, a Miranda hearing was conducted and at that time appellant was found in contempt of court for “failing to appear twice” upon his admission that “he knew of the settings” at which he did not appear. The case was then set for trial on April 27, 1973. On that date it appears that the asserted material witness was present, pursuant to a subpoena, and was admonished to be available at the forthcoming trial. On trial date, July 17, 1973, she was not present. The witness left no forwarding address and was believed to have left the state. No one appeared to have any knowledge about when she would be available. When appellant’s retained counsel stated that the absent witness would provide an alibi, the state responded it was their understanding that this witness, if present, would contradict the appellant’s alibi. In overruling appellant’s oral motion for a continuance, the trial court observed “[According to the subpoenaes issued it appears that we’ve got some eight or nine witnesses involved in this case, all witnesses, who, if we get a continuance for every one of them for being absent one time we are going to be here five years trying to get this case tried.”
It is well settled that granting a continuance is within the sound discretion of the trial court and on appeal we do not disturb that decision unless abuse of discretion is shown. Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500 (1973), Mash v. State, 248 Ark. 323, 451 S.W. 2d 869 (1970). In Thacker we enumerated factors to be considered such as diligence of the movant, probable effect of the testimony, future availability, and the likelihood of procuring the attendance of the absent witness. Furthermore, we said the failure to file an affidavit pursuant to Ark. Stat. Ann. § 27-1403 (Repl. 1962) stating the affiants belief of the truth as to what the absent witness would testify, its materiality and that the witness is not absent because of any acts on his part “is a significant factor in appellate review of the trial court’s denial of such a motion.” In the circumstances of the case at bar, we cannot say that the appellant has discharged the burden of proof by demonstrating that the trial court abused its discretionary authority.
Appellant next contends for reversal that he was denied effective assistance of counsel. In support of this contention appellant argues that his retained counsel failed to inform him of his right to appeal, as an indigent, by court appointed counsel and merely advised him that it would cost money to appeal. Appellant testified that he was unaware of his right to appeal as an indigent. It is true, as appellant asserts, that he has an absolute right to appeal. Ark. Stat. Ann. § 43-2701 (Supp. 1973). In fact, the very purpose or genesis of our Rule 1 is in furtherance of that guarantee by permitting postcon-viction relief where there is demonstrated a denial of any constitutional or statutory right. Appellant’s retained trial counsel testified and appellant admitted that the feasibility of an appeal was discussed at trial and it is uncontradicted that the appellant himself made no complaints about any matter occurring during the trial that could be the basis for an appeal. Appellant’s trial counsel also testified that appellant stated he didn’t know of any appealable grounds. Neither did he indicate indigency. His attorney testified that in his judgment no “appealable matters” existed. Appellant is thirty years of age and has a seventh grade education. He acknowledges that he has been in the penitentiary on four sentences, including the present one, and has experienced the services of four attorneys.
Appellant has the burden of showing that trial counsel by “acts or omissions (or both) of his attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or that petitioner’s representation by counsel was so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it.” Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668 (1973). See also Davis v. State, 253 Ark. 484, 486 S.W. 2d 904 (1972). Furthermore, there is a presumption that an attorney is competent, and appellant has the burden to show otherwise. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973); and Credit v. State, 247 Ark. 424, 445 S.W. 2d 718 (1969). We have also said that trial tactics and strategy of a defendant’s trial counsel involve “elements of discretion and judgment upon which conpetent counsel might disagree especially after the event.” Credit v. State, supra. In the case at bar, the appellant’s retained counsel is a veteran practitioner with some thirty years experience. We are firmly of the view that appellant has not demonstrated any prejudicial error with respect to him being denied the right of appeal through effective assistance of counsel.
Appellant next contends for reversal that the trial court failed to advise him of his right to appeal. We need not consider this contention as this allegation was not raised in his Rule 1 petition and cannot be raised for the first time on appeal. Fleschner v. State, 253 Ark. 58, 484 S.W. 2d 342 (1972); and Carney v. State, 250 Ark. 205, 464 S.W. 2d 612 (1971).
Appellant asserts that the trial court erred in permitting appellant’s trial counsel to stipulate that he had previously been convicted of four felonies which resulted in the enhancement of his sentence. Appellant argues that the stipulation of these previous convictions was prejudicial inasmuch as the trial court did not question the appellant as to whether he consented to it. We are of the view that even though the better practice would be for the trial court to inquire about his consent to the stipulation, we cannot say that the appellant has shown that he did not knowingly approve or acquiesce in the stipulation. As previously indicated, appellant has a seventh grade education, was thirty years of age, and is no stranger to criminal proceedings. It appears from the transcript that these convictions were read into evidence from the local court docket sheets. It was a factual issue for the jury to consider which, as any other fact, the parties could agree upon. Ark. Stat. Ann. § 43-2330.1 (Supp. 1973) provides in pertinent part that “if the defendant admits such previous conviction(s), then the prior conviction(s) shall be considered in fixing the punishment for the current offense. ...” It appears that the trial strategy was to minimize the effect of the four previous convictions by acknowledging, which the statute permits, that which was readily capable of proof by the local court records, resulting, therefore, in a lesser sentence.
After reviewing the record, we are of the view that the evidence is sufficient to sustain the trial court’s denial of appellant’s petition. Appellant has not demonstrated any infringement of his constitutional or statutory rights.
Affirmed.
BROWN, J., not participating. | [
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Lyle Brown, Justice.
Appellant filed a petition pro se for a writ of error coram nobis seeking to set aside a felony plea of guilty entered in October 1952. The trial court examined its 1952 records and decided, without granting a formal hearing, that the petition had no merit. The single error advanced on appeal is that the trial court should have granted a hearing on the petition.
In his petition and supporting documents appellant contended (1) that the docket sheet was in error in reciting that he waived counsel; (2) that if the docket sheet is correct, he never voluntarily and knowingly entered such a plea; and (2) that the plea was coerced.
In the order denying the petition the trial court pointed out that the docket sheet showed that appellant had declined the offer of counsel. The court also noted the long delay of some twenty-two years between the plea and the filing of the petition and concluded that the petition was untimely; the court also concluded that the petition and supporting documents “were ineffective to accomplish the purposes intended.” We perceive the recited defect in the documents to refer to the fact that they stated bare conclusions.
We hold that the court’s refusal to grant the writ was correct because of the untimely delay and the insufficiency of the allegations. We wholeheartedly approve of the guidelines set out in People v. Maston, 48 Cal. Rptr. 439 (1965), cert. denied 86 S. Ct. 917 (1966). They may be fairly paraphrased as follows:
(1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;
(2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition;
(3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and,
(4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts relied upon and not merely state conslusions as to the nature of such facts.
The documents and actions of appellant substantially violate all four of the enumerated guidelines. As has been pointed out, he waited some twenty-two years to file his petition; also the filing was over eleven years after Gideon v. Wainwright, 372 U.S. 335 (1963). Additionally, since statehood, we have required appointment of counsel for indigent defendants in felony cases. Ark. Stat. Ann. § 43-1203 (Repl. 1964). Furthermore, there is no disclosure of specific facts upon which he relies — nothing but naked conclusions.
Affirmed. | [
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Frank Holt, Justice.
The appellee, Arkansas Savings and Loan Association Board (hereinafter referred to as Board), issued to appellee, Union Fidelity Savings and Loan Association (hereinafter referred to as appellee), a charter to do business in El Dorado. The application was opposed by the appellant. The Board’s decision was affirmed by the circuit court and from that judgment comes this appeal. For reversal the appellant asserts that the court erred in finding there was substantial evidence to support the Board’s decision to issue the charter. Appellant argues that the proof is insubstantial to show there is a public need for a new association; the volume of business in the area does not indicate a successful operation by appellee; and there is no substantial evidence that appellee’s doing business in the area will not unduly harm any other existing association or other financial institution in that area. Ark. Stat. Ann. § 67-1824 (Supp. 1973). Since these issues are so closely related, we discuss them together.
The appellant recognizes our rule that in this type case we affirm the Board’s action if there is any substantial evidence to support its findings. Morrilton Fed. S&L v. Arkansas Valley S&L, 243 Ark. 627, 420 S.W. 2d 923 (1967). Furthermore, in determining if substantial evidence exists, we consider only the appellee’s testimony or that evidence adduced which is most favorable to the appellee. Baldwin v. Wingfield. 191 Ark. 129, 85 S.W. 2d 689 (1935); and Washington Natl. Ins. v. Meeks, 252 Ark. 1178, 482 S.W. 2d 618 (1972). In the case at bar, when we consider the evidence with all reasonable inferences deducible therefrom in the light most favorable to the appellees, as we do on appeal, we are firmly of the view there is substantial evidence to support the Board’s findings.
The appellant, chartered in 1934, is the only savings and loan institution in El Dorado and Union County. Appellant is a 34 million dollar institution and is twelfth in size in the state. However, El Dorado is the ninth largest city in the state and the largest city with only one savings and loan association (with the exception of North Little Rock which is also served by several associations in Little Rock.) There are eight smaller cities in Arkansas with two existing savings and loan associations (six of these eight smaller cities are less than one-half the size of El Dorado and two of these eight smaller cities are less than one-third the size of El Dorado). The Board, being knowledgeable of the existence and success of these associations in snaller areas, no doubt took into consideration whether an additional savings and loan association was needed, could be successful in El Dorado and would not unduly harm the only one existing there.
The fact there was a population decline in the county by 1.9% the past three years is only one factor for the Board’s consideration. However, during the period 1960-1971 there was a 73.5% increase in personal income in Union County. There was evidence by appellee’s economic expert witness, as abstracted, that “the increase in employment which appears to have occurred in Union County is a very recent phenomonon in the last eighteen months. Now, I think there are pretty strong indications of continued employment in the availability of new jobs in Union County. I think there will be a significant growth in employment over the next two or three years.”
An executive of the El Dorado Chamber of Commerce detailed numerous industrial and commercial projects then under construction at a total cost of approximately 36 million dollars, which would create considerable additional employment. Appellee’s expert economic witness was of the view that these new construction projects underway “means there seems to be a trend now toward greater industrialization of the area, a trend toward population growth and I think it is verifiable.” There was evidence that appellant does not make loans on mobile homes, nor construction or interim loans on speculative building of houses. Local banks, which do not oppose appellees’ charter, are making mortgage loans which characteristically is done by savings and loan associations and not by the banks. One executive of a bank in the county testified that “I don’t think it [the new association]would have any effect on it [the bank]. In fact I think maybe it would help us.” This view was on the basis that it was found necessary to make long term loans to their customers which they prefer not to do. One of appellant’s witnesses admitted that during the current year, 1973, (the hearing was conducted on November 28, 1973) it had not made any commer cial loans in the county. It appears that a large shopping center mall, approximating a cost of 3 1/2 million dollars had recently opened and that financing was principally provided by a savings and loan association in Fine Bluff. On another occasion, appellant was approached to finance the purchase of a local office building and the local purchaser found it necessary to secure the loan from a savings and loan in Magnolia. Savings and loan associations in Camden and Pine Bluff have considered applying for branch charters in El Dorado.
There was evidence by appellee that appellant’s advertising budget was very small. A witness for appellant admitted that it has “never done too much advertising.” Another witness for appellant testified that the public “seems to have more confidence in the bank than they do in a savings and loan, more careful about keeping their account insured.” Three of appellant’s other witnesses admitted that the local economy was “good,” “very good” and “definitely on the upswing.” A building contractor with long experience in the county was very optimistic as to the growth of El Dorado and the county. This builder has consistently built new homes requiring speculative financing. From January, 1973, up to the date of the hearing (November 28, 1973), he listed interim financing by local institutions at $135,000 and out-of-town financial institutions at $330,000. As to permanent financing, local financial institutions provided him with $110,600 and out-of-town financial institutions provided $557,000. He had requested financing from each of the four local institutions. The demand for construction money and financing is greater now than it has been in the last twenty years. Retail sales in the county have increased 203% since 1960.
As previously stated we are firmly of the view, without detailing further evidence from the voluminous record, there is substantial evidence, when viewed' most favorably to ap-pellee, as we must do on appeal, to support the Board’s finding that there is presently a need, which indicates a successful operation, for another savings and loan association in El Dorado and Union County and that it will not unduly harm the appellant, the only protestant, or other existing financial institutions in that area.
Neither do we agree with appellant’s contention that the evidence is insubstantial to support the Board’s findings that appellee will be “independent of the other financial institutions, that those persons named in the Articles of Incorporation as directors and officers do not have such affiliations with any financial institutions, or other businesses closely related to the savings and loan association’s business, which would affect the independence of the proposed association, and the directors are representative of the community.” Appellant invokes Ark. Stat. Ann. § 67-1824 (Supp. 1973), which in pertinent part provides that the Board find:
The proposed association will be independent of other financial institutions, that those persons named in the articles of incorporation as directors and officers do not have such affiliations with any financial institutions or other businesses closely related to the savings and loan association business which would affect the independence of the proposed association, and that the directors are representative of the community.
It appears that the father of one of appellee’s directors is a director of a local bank. The fathers of two of appellee’s directors are directors of another local bank and one of appellee’s directors is also a director of a local bank. However, four of the nine directors have no ties with any bank and one unnamed director, the managing officer, will have no ties to any local bank. Appellee’s capitalization consisted of $560,000, $400,000 in permanent capital and $160,000 by appellee’s stockholders. This is 2 1/2 times the minimum amount ($180,000 in permanent capital and $60,000 in paid-in surplus). The appellant does not take issue with the Board’s finding that:
The character, responsibility and general fitness of the persons named in the articles of incorporation and who will serve as directors and officers of the Association are such as to command confidence and warrant belief that the business of the proposed association will be honestly and efficiently conducted.
Suffice it to say that all of the directors have differing backgrounds and have attained successful careers in their respective professions. They are representative of the community. Certainly, the Board was justified in finding that these individuals, successful in their own right, would be independent and conscientious in their new responsibility in preserving their own interest as well as the paramount interest of the public.
Appellant, in oral argument, vigorously insists that we should reverse and remand this cause to the Board for a definitive finding as to the basis of its decision as is required by the Administrative Procedure Act. Ark. S&L Bd. v. Central Ark. S&L. 256 Ark. 846, 510 S.W. 2d 872 (1974). Appellee insists that we should affirm the case on its merits as we did in Ark. S&L Bd. v. Grant Cty. S&L, 256 Ark. 858, 510 S.W.2d 863 (1974). Both of these decisions were handed down the same day and after appellant’s reply brief was filed. We remanded in Ark. S&L Bd. v. Central Ark. S&L, supra. There the issue that the Board erred in failing to make specific findings of underlying facts as required by law was argued in the briefs although not in the trial court. We said that the specific findings by the Board were for the benefit of the reviewing courts. In Ark. S&L Bd. v. Grant Cty. S&L, supra, the issue was not presented and we affirmed. Of course, as we have said, specific findings of the underlying facts are of great benefit upon appeal. However, here, as in Ark. S&L Bd. v. Central Ark. S&L, supra, the issue was not raised in the briefs. Only at oral argument was appellant’s contention asserted. By that time the court had studied the briefs and the issues there presented. Having done so and since the evidence is amply substantial to support the Board’s findings, we find it unnecessary to remand the cause for the Board to detail the basis of its findings.
We need not consider what action we would have taken had not both the Board and the circuit court decided this case before our decision in Ark. S&L Bd. v. Central Ark. S&L, supra.
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Lyle Brown, Justice.
This is an appeal by the Arkansas Insurance Commissioner (commissioner) from an order of the Pulaski Circuit Court reversing an order of the commissioner requiring Insurance Services Office of Arkansas (ISO) to reduce automobile insurance rates by specified percentages. (ISO is not an insurer. It is a statistical rating and advisory organization, or rating bureau for property and casualty lines of insurance. It gathers statistics from and files on behalf of its member-subscriber companies.) The trial court held that the commissioner has no statutory authority to reduce rates with the exception of fire insurance rates. The commissioner contends that he is charged with the responsibility of regulating private passenger automobile insurance rates “to the end that they shall not be excessive, inadequate or unfairly discriminatory”. Ark. Stat. Ann. § 66-3101 (Repl. 1966). The commissioner further contends that the mechanisms to be used to enforce the aforesaid responsibility are incorporated in Ark. Stat. Ann. §§ 66-3110, 66-3111, which he says requires the insurer or rating organization to file rates with the commissioner for prior approval. The commissioner also cites Ark. Stat. Ann. § 66-3112 (Repl. 1966) which he says provides for subsequent review of a filing previously approved.
Section 66-3101 provides: “The purpose of this chapter is to promote the public welfare by regulating insurance rates to the end that they shall not be excessive, inadequate or unfairly discriminatory, and to authorize and regulate cooperative action among insurers in rate making and in other matters within the scope of this chapter. Nothing in this chapter is intended :
(1) To prohibit or discourage reasonable competition,
or
(2) Prohibit or encourage, except to the extent necessary to accomplish the aforementioned purpose, uniformity in insurance rates, rating systems, rating plans or practices. This chapter shall be liberally interpreted to carry into effect the provisions of this section.”
The other two sections cited by the commissioner provide the procedure to be taken once there is a filing for proposed rates. Those sections are 66-3110 and 66-3111, and read as follows:
66-3110. (1) The Commissioner shall review filings as soon as reasonably possible after they have been made in order to determine whether they meet the requirements of this chapter.
(2) Subject to the exceptions specified in subsections (3) and (4) of this section, each filing shall be on file for a waiting period of fifteen (15) days before it becomes effective, which period may be extended by the Commissioner for an additional period not to exceed fifteen (15) days if he gives written notice within such waiting period to the insurer or rating organization which made the filing that he needs such additional time for the consideration of such filing. Upon written application by such insurer or rating organization, the Commissioner may authorize a filing which he has reviewed to become effective before the expiration of the waiting period or any extension thereof. A filing shall be deemed to meet the requirements of this chapter unless disapproved by the Commissioner within the waiting period or any extension thereof.
(3) Specific inland marine rates on risks specially rated by a rating organization shall become effective when filed and shall be deemed to meet the requirements of this chapter until such time as the Commissioner reviews the filing and so long thereafter as the filing remains in effect.
(4) Any special filing with respect to a surety or guaranty bond required by law or by court or executive order or by order, rule or regulation of a public body, not covered by a previous filing, shall become effective when filed and shall be deemed to meet the requirements of this chapter until such time as the Commissioner reviews the filing and so long thereafter as the filing remains in effect.
66-3111. (1) If within the waiting period or any extension thereof as provided in section 243 (2) [§ 66-3110(2)], the Commissioner finds that a filing does not meet the requirements of this chapter, he shall send to the insurer or rating organization which made such filing, written notice of disapproval of such filing specifying therein in what respects he finds the filing fails to meet the requirements of this chapter and stating that such filing shall not become effective.
(2) If within thirty (30) days after a specific inland marine rate on a risk specially rated by a rating organization subject to section 243 (3) [§66-3110(3)] has become effective, or if within thirty (30) days after a special surety or guaranty filing subject to section 243 (4) [§66-3110(4)] has become effective, the Commissioner finds that such filing does not meet the requirements of this chapter, he shall send to the insurer or rating organization which made such filing written notice of disapproval of such filing specifying therein in what respects he finds that such filing fails to meet the requirements of this chapter and stating when, within a reasonable period thereafter, such filing shall be deemed no longer effective. The disapproval shall not affect any contract made or issued prior to the expiration of the period set forth in the notice.
We agree with the trial court that there is nothing in the recited three sections which gives the commissioner the power to fix a specified rate. In addition to the fact that no such specific authority is given, we think it is highly persuasive that the insurance code specifically provides that the commissioner may reduce fire rates but does not designate such authority for any other field of insurance. See Ark. Stat. Ann. § 66-3106 (Repl. 1966) which gives the commissioner the authority to adjust fire insurance rates.
There are two cases which are fairly well in point and which hold as we do. The first case is a 1975 Oklahoma case, Insurance Services Office v. State Board, 530 P. 2d 1359. Our chapter on insurance rates and rating organizations appears to be very similar to the statutes under which Oklahoma operates. The principal question in that case was the same as here, namely, the power of the Board of Insurance of Oklahoma to fix casualty insurance rates. The Oklahoma court said:
The Board does not have rate making or rate fixing powers and authority as to casualty insurance and all forms of vehicle insurance on risks or operations in this state. The Board does have authority to disapprove, during the waiting period, a filing; or order the discontinuance of the use of a rate in effect after investigation, proper hearing with notice and a determination in the rate is not in accordance with the terms of the Act.
* * * *
It seems admitted that in the Casualty Rating Act, the legislature did not specifically grant to the Board rate fixing authority. The Board argues, however, that because the legislature prescribed guidelines and framework within which rates should be considered neither inadequate or excessive the power to fix rates was thereby created impliedly in the Board. Such argument overlooks the specific provisions in the Act which provide the method by which the Board shall proceed to apply such guidelines. The existence of guidelines is the legislatively delegated authority upon which the Board acts when it disapproves or suspends a rate. The existence in the Act of specific authority to disapprove a proposed rate or to suspend from continuing effectiveness an existing one excludes any implication of an additional power in the Board to fix a rate itself as it has attempted to do in this proceeding. The legislature in tended what was expressed in the Act and nothing more.
The State of Wisconsin has a law the substance of which is no different from the substance of our own statute. Fire Insurance Rating Bureau v. Ragan, Commissioner, 4 Wis. 2d 558 (1958) was a case adjudicating the proposition that under insurance regulatory statutes such as we have, the Commissioner of Insurance in Wisconsin has no authority whatever to promulgate, prescribe, or fix insurance rates. In that case the parties, i.e., The Rating Bureau and The Commissioner of Insurance agreed both with the circuit court and the Supreme Court in Wisconsin that the statute did “not give the commissioner authority to establish rates”. In addition, the Supreme Court of Wisconsin stated that it could not “find in the statute any authority for this court to determine rates or the percentages to be used for any of the factors necessary to determine a fair and reasonable rate”.
Our holding does not prevent the commissioner, when he specifies the respects in which he finds that a rate filing fails to meet statutory requirement, from stating the effect of those factors on the rates filed, both as to manner and extent.
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George Rose Smith, Justice.
When this condemnation action was filed in 1971 the appellee owned a 14.51-acre tract at the intersection of West Markham Street and Shackleford Road, in Little Rock. The highway department is taking all except 5.42 acres of that tract. The taking is partly for a controlled-access highway and partly for city streets, the landowner having a right of access to the latter. The jury fixed the landowner’s compensation at $88,000. Several points for reversal are argued.
The highway department, in filing the complaint and declaration of taking, as amended, incorporated by reference the plans pursuant to which the highway improvement is to be constructed. See Ark. State Highway Commn. v. Wilmans, 239 Ark. 281, 388 S.W. 2d 916 (1965). At the beginning of the trial counsel for the condemnor conceded that the highway department was bound by the plans and then went on to say: “We will build the highway in accordance with the plans, and any judgment entered in this case can certainly specify in the event those plans were changed with respect to the control of access to this property, that this would constitute a new taking for which the landowner would be entitled to damages.”
Despite that assurance on the part of counsel the court gave the landowner’s requested instruction number two. That instruction told the jury that the department was acquiring the property for “highway purposes,” which were then defined as including the eleven purposes enumerated in Ark. Stat. Ann. § 76-532 (Repl. 1957), all of which were then read to the jury. The enumeration included such patently extraneous purposes as rock quarries, gravel pits, borrow pits, shops, storage yards, drainage, stock trails, cattle passes, the elimination of grade crossings, and other matters not pertinent to the particular improvement to be constructed in this instance. We have recognized that the highway department, in taking the fee simple, has the power to devote the property to various purposes listed in the statute. Ark. State Highway Commn. v. Wallace, 247 Ark. 157, 444 S.W. 2d 685 (1969). It does not follow, however, that the jury should be presented with an exaggerated and misleading conception of the actual uses to which the tract being taken might be put in the future. The instruction was abstract and should not have been given. We cannot say with assurance that its effect upon the jury was not prejudicial.
In view of the necessity for a new trial two other points should be mentioned. First, the court was unduly strict in limiting the highway department’s cross-examination of the witness Barnes. The great value of the right of cross-examination has been emphasized so frequently that we need not cite the cases. Counsel sought to show, by interrogating Barnes, that in other condemnation cases he had testified that the taking had not enhanced the value of the landowner’s remaining land, which was thereafter promptly sold at prices in excess of the valuation given by the witness. Of course, the trial judge has much discretion in controlling cross-examination, so that the inquiry does not go too far afield. Even so, if counsel could bring out by Barnes’s own admissions that his earlier testimony had proved to be wrong in a number of instances, his credibility might well have been seriously impaired. The effort should have been permitted.
We perceive no error in the court’s rulings with respect to the direct examination of the landowner’s witness Meeks. He testified to the diminution in the value of the landowner’s remaining tract that would result from the highway department’s predominant control of the part being taken. That type of damage was recognized in the Wallace case, supra, and in Ark. State Highway Commn. v. Kesner, 239 Ark. 270, 388 S.W. 2d 905 (1965). The court’s explanation, arising in the heat of the trial, may not have been as precise as it might have been, but that is a matter that counsel may be expected to improve upon in their preparations for a second trial.
Reversed.
Jones, J., not participating. | [
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Frank Holt, Justice.
A jury found appellant guilty of first degree murder and his punishment was assessed at life imprisonment in the Department of Correction. We first consider appellant’s contention by his present counsel that the evidence is insufficient to establish premeditation and deliberation, which are essential elements of first degree murder. On appellate review we consider only that evidence most favorable to the appellee and affirm if there is any substantial evidence. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).
The victim, Stanley Wells, was seen entering a 1962 light colored Chevrolet with appellant about 1:30 a.m. on March 12. Later that morning, at approximately 3 a.m., appellant told his brother’s girl friend that he and his brother “had really done it this time,” “had beaten a man to death,” and the body was “at the grave yard on Reynolds Road.” She testified that appellant’s “shirt had blood on it.” “His jeans had blood on them and his shoes were soaked with blood.” The light colored Chevrolet was “covered with blood.” “]T]he windshield on the driver’s side and the whole hood of the car had splatters all over it.” The appellant, in her presence, washed the blood off the outside of the car. The appellant showed her a “piece of pipe,” which was used in the fatal beating.
The assistant state medical examiner testified that the victim’s death was caused by approximately seventeen separate blows to the head by a blunt instrument. The force of the blows caused skull fractures to the extent that the brain was exposed. The victim was identifiable only by fingerprints as a result of these head wounds.
It is well established that the requisite elements of premeditation and deliberation in first degree murder can be inferred whenever the circumstances justify such an inference. Robertson v. State, 256 Ark. 366, 507 S.W. 2d 513 (1974); Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966); and House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959); and Weldon v. State, 168 Ark. 534, 270 S.W. 968 (1925). In Weldon we specifically recognized that the manner in which a deadly weapon is used can be sufficient to justify a finding by the jury that the weapon was used with a premeditated and deliberate intent to kill. In the case at bar, we are firmly of the view that the savagery of this attack by repeated blows to the head to the extent the victim was unrecognizable is ample substantial evidence from which the jury could infer the premeditated and deliberate intent to kill.
Neither can we agree with appellant’s assertion that photographs of the deceased’s body served only to inflame the minds of the jurors. The court limited these photographs to those depicting the scene of the crime and the decedent’s condition there. In Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973), we said:
We agree with appellant that these admitted should have been rejected if their sole effect was to inflame the passions of the jurors against him. **** Otherwise, the admission and relevancy of photographs are matters resting largely in the discretion of the trial judge. **** An objection that photographs tend to inflame or prejudice the jury is not valid, if they are otherwise properly admissible.
Suffice it to say that the pictures were certainly relevant as an aid to the jury from which it could infer the essential elements of first degree murder, which are disputed by appellant. It is difficult to perceive that one could kill another in such a savage manner, as here, and then be permitted to shield himself by the exclusion of these photographs, which corroborate witnesses and so accurately depict the ferocity of the attack apparently upon an unarmed victim. 1
Appellant also asserts that a tire was improperly admitted into evidence because the state failed to establish a proper chain of custody of a tire during a six day interval after the sheriff impounded the car. Therefore, appellant contends that someone could have “changed” or switched the tire, which was permitted into evidence. Tread indentations from the tire, which were taken from the impounded 1962 white Chevrolet, matched the tire tracks found at the scene of the erime. It is not contended that this is not the car connected with the offense. A witness saw the victim enter the same car just an hour or so preceding the murder. Shortly afterwards,* another witness observed the car covered with blood and saw appellant wash blood off the automobile.
In Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973), we said “[T]he purpose of the chain of identification is to prevent the introduction of evidence which is not authentic.” In Freeman v. State, 238 Ark. 804, 385 S.W.2d 156 (1964), appellant contended that it was not established that a shell and three empty cartridges were the same as the ones in the gun at the time of the shooting. In affirming, we said “ [T]hey were found in appellant’s gun soon after the shooting, and there was no.evidence to show the gun was tampered with in the meantime.” In the case at bar, the tire was removed from the car connected with the alleged crime and there is no evidence or hint of any that the tire was tampered with during the six day interval that the sheriff had impounded the car.
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John A. Fogleman, Justice.
Appellants contend that the chancery court erred in allowing attorneys’ fees of $275.00 to appellees’ attorneys from the proceeds of a partition sale in this case. The action was commenced by a petition of appellees Virgil Cox and Clara Armstrong to quiet the title to the lands involved in them. Appellants Ella Cox McElhaney and Pearl Reeves answered and counterclaimed, alleging that they were tenants in common with appellees and that the property was not susceptible of division in kind, and asking that the lands be sold in partition, that the court award Ella Cox McElhaney taxes paid by her and interest thereon out of the proceeds of sale, and that, after payment of costs and a reasonable attorney’s fee, the balance be divided among the respective heirs according to their interests. Appellees responded, asserting that appellants had no interest in the property and asked that the counterclaim be dismissed. Appellants then filed a request for admissions. If these requests had been admitted, it would have been clearly established that appellees were tenants in common. Appellees, however, Filed an amended complaint alleging that it was amended by agreement of the attorneys for appellees and appellants, that the parties were tenants in common and that the property, not being divisible in kind, should be sold and the proceeds divided according to the interests of the respective parties. Appellees prayed that the court order a sale and divide the proceeds. No responsive pleading was thereafter filed by appellants.
On the 19th day of September, 1973, upon presentation of the amended complaint, the court entered an order directing the sale. No other pleading is mentioned in the decree. Prior to the entry of the decree, the attorney for appellants had advised one of the attorneys for the appellees that the proposed order was in proper form, except that it made no mention of reimbursement for taxes paid. The sale was held, reported and confirmed. The clerk of the court was its commissioner in making the sale. She filed a request for approval of her proposed distribution of the proceeds of sale, which included an item of $275 for attorneys’ fees.
The major thrust of appellants’ contention is that they, rather than appellees, instituted the suit and that Ark. Stat. Ann. § 34-1825 (Supp. 1973), the governing statute, requires that a reasonable fee be allowed to the attorney bringing the suit. They argue that since appellees first filed a petition to quiet title and appellants counterclaimed for partition, the allowance should have been to their attorney, not appellees’. They overlook the fact that the amended complaint stated a new and different cause of action and superseded the original petition to quiet title. Talkington v. Schmidt, 219 Ark. 333, 242 S.W. 2d 150; American Bonding Company v. Morris, 104 Ark. 276, 148 S.W. 519; Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, 147 S.W. 64, Ann. Cas. 1914B 837. They also ignore the fact that the decree for partition was rendered on that amended complaint, without consideration of any other pleading. Under the circumstances there was no error in allowing a reasonable fee to the attorneys for appellees as the parties bringing the suit for partition.
Appellants also list, but do not argue, a point for reversal based upon the absence of a prayer by appellees for allowance of attorneys’ fees. Even if appellants have not waived this point for reversal by their failure to argue it, it is not well taken for at least two reasons. Appellants challenged the allowance by a motion, in which the lack of a specific prayer was not even mentioned, much less asserted as a ground. The issue cannot be raised for the first time on appeal. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848. Furthermore, the statute mandates the taxing of the fee as a part of the costs of the cause. Johnston v. Smith, 248 Ark. 929, 454 S.W. 2d 649. We have held that under the statute as presently written the fee should be assessed and taxed proportionately against all parties. Ramey v. Bass, 210 Ark. 1097, 198 S.W. 2d 835.
Costs are incident to all actions, and where the statute requires that they be awarded, and does not require a demand for their payment, the absence of a specific prayer for the allowance in any pleading filed by appellees is not fatal. See Jefferson County v. Philpott, 66 Ark. 243, 50 S.W. 453; Eddie v. Eddie, 138 Mo. 599, 39 S.W. 451; 20 CJS 261, Costs § 2; Arizona Cotton Ginning & Mfg. Co. v. Sims, 29 Ariz. 198, 240 P. 341 (1925). See also, Summerville v. North Platte Valley Weather Control District, 171 Neb. 695, 107 N.W. 2d 425 (1961).
The judgment is affirmed.
Byrd, J., concurs. | [
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George Rose Smith, Justice.
This action at law was brought by Rowe Auto, a used car dealer, to recover an unpaid balance of $580 due under a contract by which it sold a 1965 Chevrolet car to King: King counterclaimed for cancellation of the contract on the ground that it was usurious under Arkansas law and violative of the federal Truth In Lending Act. The trial judge, sitting as a jury, entered a judgment canceling the contract and awarding King damages of $1,000 and an attorney’s fee of $500. Rowe Auto questions the sufficiency of the evidence and the court’s ruling upon issues of law.
On November 24, 1972, King signed a contract by which he purchased the 1965 Chevrolet for a recited cash price of SI 095. The down payment was S250. The unpaid balance of $845 was payable in weekly installments of $20 each, with a final installment of $5. The contract, although reciting the “Amount Financed” as $845, stated that there was no finance charge and thus no annual percentage rate of interest.
King’s theory of the case, with respect both to usury and to the Truth in Lending Act, is that Rowe Auto in fact exacted a finance charge by inflating the credit price far above what the seller would have accepted in a cash transaction. Inasmuch as the provisions of the federal statute and accompanying regulations are more explicit than our case law with regard to usury, we confine our discussion to the federal law. We should add, however, that the appellant’s reliance upon our holding in Ford v. Hancock, 36 Ark. 248 (1880), is not justified, in view of our decisions in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W. 2d 973 (1952), and Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W. 2d 802 (1957).
The Truth In Lending Act, 15 USCA, Chapter 41, Subchapter I, has been extensively implemented by Regulation Z (which is printed immediately after the Act in USCA). Section 226.2 (i) of the Regulation provides that a “cash price” may include the cash price of accessories or services related to the sale, but it cannot include interest or a time price differential, as set out in § 226.4 (a) (1) of the Regulation. In sustaining the Regulation the Supreme Court pointed out in Mourning v. Family Publications Service, 411 U.S. 356 (1973), that one former means of circumventing the objectives of the Act, as passed by Congress, was that of “burying” the cost of credit in the price of goods sold.
King, to show such a violation of the Act (and usury) in this instance, introduced the testimony of Larry Davis and Jim Ahrend. Davis testified that he had gone to the Rowe Auto used car lot on the afternoon before the trial, had asked the credit price of a certain dented 1966 Chevrolet, and had been quoted a price of $995, payable $200 down and $15 a week. Davis testified that he talked to Rowe Auto’s assistant manager, who had testified earlier and was sitting in the courtroom.
The second witness, Ahrend, testified that he too had gone to Rowe Auto, had proposed to a salesman that he would pay cash for the same car, and had been quoted a price of $450. Ahrend obtained a written statement of that price, which was received in evidence. Rowe Auto made no effort to contradict the testimony of either witness.
The trial court overruled Rowe Auto’s objections to the testimony, holding it admissible to show that interest was hidden in the credit price. The only plausible argument now urged against the admissibility of the testimony is that it was too remote, because the date of trial was slightly more than eight months after King’s original purchase.
That argument is without merit. In Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581 (1971), we considered the admissibility, in civil cases, of evidence of other transactions as tending to show a general plan or motive. Although such evidence is usually offered in criminal cases, we discerned no reason why the same rule should not apply in civil cases. Since there is no precise way of determining what is too remote in time, we said that the admission of such testimony rests largely in the sound discretion of the trial court. In Caton and Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), we again considered the issue of remoteness and discussed one case where the similar conduct had occurred about a year before the offense charged, a second case where the interval was more than two years, and a third where it was from four to five years. In each instance the evidence was held to be admissible. Our conclusion: “The trial court’s latitude of discretion in the matter of remoteness is illustrated in these cases.”
There was certainly no abuse of discretion in the case at bar. In fact, if the two witnesses had priced a car at the Rowe Auto lot, say, six months before the trial, Rowe Auto might easily have been at a disadvantage in trying to refute their testimony after that lapse of time. By contrast, no similar handicap existed with reference to incidents that took place on the day before the trial. The trial judge was doubtless impressed, as we are, by Rowe Auto’s failure to dispute the proffered testimony and, additionally, by Mr. Rowe’s failure to take the witness stand and submit to cross-examination under oath, even though his assistant manager had testified that Rowe handled all such cash transactions.
In view of the testimony just mentioned we must reject the appellant’s argument that King failed to prove a violation of the Truth in Lending Act. Under that statute a cash price must not include interest or a time price differential. Thus the trial court, in order to sustain the a; pellant’s contention, would be required not only to reject the testimony of Davis and Ahrend but also to conclude, without proof, that Rowe Auto would have been equally willing to sell the car to King either for $1095 in cash or for that amount payable, as the contract specified, $250 down and $20 a week for 42 weeks.
We must, however, sustain the appellant’s contention that King failed to ofer substantial proof that the car which he bought was worth only $500, as the trial court found. King did not introduce any expert testimony of value. Instead, he relied upon a finance company employee, who testified that a “Red Book” of used car values showed the car to be worth $500. In overruling the appellant’s objection to that proof the trial court expressed his belief that the Red Book valuation would have been inadmissible at common law but was admissible under the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-724 (Add. 1961), which permits the introduction of trade journals or periodicals.
To begin with, the witness was able to testify only that the Red Book used in the Arkansas offices (their number not being specified) of his own employer. That testimony fell short of establishing the Red Book as a trade journal or periodical. Moreover, the trial court was in error in con-cludin' that the UCC rule of evidence is applicable to this case. Even though the contract of sale between the parties is governed by various provisions of the Code, that statute has no bearing upon the issues now presented, involving usury and Truth In Lending. The UCC does not purport to lay down general rules of law governing litigation not arising un der the provisions of the Code. Hence the trial court’s ruling upon the admissibility of the evidence should have followed the common law rather than the UCC rule. It follows that there is no substantial evidence to support the lower court’s essential finding that the value of the car purchased by King was $500.
We find it unnecessary to discuss other arguments urged by the appellant.
Reversed and remanded for a new trial. | [
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Carl Creekmore, Special Justice.
This is a taxpayers action challenging the constitutionality of Acts 680, 280, 279, 321, 353 and 603 of the General Assembly of 1971, and Acts 610, 562, 691, 565, 517 and 568 of the General Assembly of 1973.
The Trial Court held the Acts unconstitutional, restrained further payment under their provisions, ordered accounting and restitution by three of the county officials and held Chancery Court to be without jurisdiction to require accounting and restitution by the other three officials. The county officials appealed and the taxpayers filed a cross appeal.
The challenged Acts are comprehensive legislation dealing with numerous county officials, including Pulaski County, providing for the allowance of expense accounts as set out in the respective Acts. The 1971 Acts provided an expense account of $4,800.00 per annum for two of the Pulaski County officials and $5,400.00 per annum for the remainder of the Pulaski County officials. The 1973 Acts were identical to the 1971 legislation except to the amount of money. The 1973 Acts provided an expense account of $5,400.00 per annum for the County Treasurer and $6,000.00 per annum for the other county officials of Pulaski County.
Appellee taxpayers filed this action alleging that all of the Acts were void as an effort to make an allowance to the various county officials of Pulaski County, thereby increasing their salaries in violation of Article 19, Section 23, of the Arkansas Constitution, which provides: “No officer of — any county — shall receive, directly or indirectly, for salary, fees and perquisites more than Five Thousand Dollars net profits per annum in par funds — ”.
The Acts provide that each of the named Pulaski County officials shall, in addition to his salary of $5,000.00 per annum, “be allowed an expense account not to exceed (the amount designated for each official) per annum, from which he shall be reimbursed for all reasonable and necessary expenditures incidental to the proper performance of the duties and operation of his office.”
The Trial Court made the following finding of fact with reference to the disbursement of the expense accounts provided by the respective acts:
“The defendants, L. E. Tedford, Vernon Noakes and William L. Tedford, filed monthly claims with the County Court, certifying that ‘the foregoing claim is just and correct, and that no part thereof has been paid previously, that the services charged for or materials furnished, as the case may be, were actually rendered, or furnished, and that the charge made therefor does not exceed the amount allowed by law . . .’ The defendants, B. Frank Mackey and C. B. Rotenberry, County Judge and Comptroller, respectively, approved and authorized the payment of these claims; the defendant, Charles F. Jackson, County Clerk, issued warrants on the county funds pursuant to said authorizations; and the defendant, William L. Tedford, County Treasurer, paid and honored these warrants out of county funds.
“The defendants, Monroe Love, Roger McNair, and Charles Jackson, filed no claims with the County Court requesting disbursement of county funds for ‘expenses’, nor do the county records reveal any approval or authorization from the County Court for the payment of ‘expenses’ of these three officials. Each of these defendants deducted his ‘expense’ check from the fees and emoluments received in his office, indicating these deductions on monthly emolument reports filed with the County Clerk. The county records indicate no documents signed by the County Court approving these monthly emolument reports, nor do the records reflect any County Court approval of the year-end settlements filed by these officials.”
The Trial Court found that the expense account money received by Monroe Love, Roger McNair and Charles Jackson was not reimbursement for any expenses incurred for the benefit of Pulaski County, Arkansas, and that the funds received under these acts amounted to compensation in violation of the constitution. The Trial Court made the further finding that:
“All the actual and necessary expenses of the office of each of the county officials are paid for by the County, and, in addition, each official received a monthly car allowance of from SI50.00 to S200.00 above and beyond his salary and his expense’ check.”
The points relied on for reversal by Appellants are:
1. The Trial Court erred in declaring the enumerated Acts unconstitutional as violating Article 19, Section 23 of the Constitution and enjoining the taking of expense allowances thereunder.
2. The Trial Court erred in requiring accounting and restitution by certain officials of expense allowances drawn.
Four alleged errors by the Court are asserted in the cross appeal. We find merit in Numbers One and Two.
We cannot agree with Appellants on either contention. Wé do not find the Acts challenged to be unconstitutional as adopted, but we do find all of them to be unconstitutional as applied and administered in Pulaski County.
In Laman v. Smith, 252 Ark. 290, 478 S.W. 2d 741, we held an ordinance providing for public relations expenses for the-Mayor and City Clerk, in addition to their salary, to be valid. But we held that they could not be paid one-twelfth each month of the amount appropriated, but were only entitled to reimbursement for expenses actually incurred.
In holding that the officers were entitled to reimbursement for public relations expenditures made up to the maximum amount of the appropriation, this Court said:
“This is, of course, entirely different from making a set allowance of funds to a public officer to be used at will.” And we emphasized this in the closing paragraph saying: “In accordance with what has been said, we hold the ordinance valid, reiterating, however, that the officers involved in this litigation are not entitled to one-twelftb each month of the total amount appropriated for public relations expenses, but are entitled only to reimbursement up to that amount for public relations expenses actually incurred.”
In Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279, which involved public relations expenses for certain state officers, we invalidated Section 3 of Act 399 of 1961, which provided:
“On the first day of each calendar month in each of the foregoing fiscal years, the Auditor of State shall issue a warrant drawn in favor of each of the officials named in Section 2 hereof in the amount of one-twelfth of the appropriation allocated to each such official, and the State Treasurer is hereby authorized and directed to pay said warrants from funds herein appropriated.”
In so doing, we said, “Section 3 would authorize monthly payments of public relations expenditures by (to) the state officers whether or not they had incurred such expenditures. Therefore, we conclude that Section 3 of Act 399 must be stricken.”
In Jones et al v. Mears et al, 256 Ark. 825, this Court upheld the constitutionality of an Act authorizing the members of the General Assembly to obtain reimbursement for actual, reasonable and necessary expenses incurred by the members in performing activities which were directly connected with, and incidental to, their official duties.
In that opinion, it was said, “However, this Court could countenance no claim which appeared to be a sham to evade the constitutional limitation on compensation.”
In these cases, this Court recognized the right of public officers to be reimbursed for actual, reasonable, and necessary expenses incurred in performing duties directly connected with, and incidental to, their official duties. But in so doing, the Court has not approved the payment of any funds in excess of the constitutional limitations which could go into the pockets of the recipient.
It is significant that each appellant admitted that federal income tax was deducted from the total of his salary and expenses combined, admitted that state income tax, social security and state retirement were deducted from the total salary and expenses combined, and admitted that the social security deductions and state retirement deductions were matched from Pulaski County funds.
Expense money provided by the Acts in question was received in advance and without any itemization or vouchers. The appellants were at liberty to expend the funds as they so desired without any actual accounting therefor.
Under the facts and circumstances in this case, we are compelled to the conclusion that the receiving of the “expense” money by each and all of the appellants constituted an illegal exaction under many decisions of this Court. An illegal exaction, under the terms of Article 16, Section 13 of our Constitution was defined in Mackey v. McDonald, 255 Ark. 978, as an exaction that either is not authorized by law or is contrary to lav*'. In the same case, at Page 982, this Court said:
“It seems that, under this section of the Constitution, equitable remedies are accorded the taxpayer to prevent misapplication of funds when the taxpayer may be required to replenish those funds if exhausted through the misapplication. Eddy v. Schuman, supra. (206 Ark. 849). It also seems clear that this constitutional provision is applicable in every case where taxpayers will bear the burden of replenishing funds exhausted by misapplication.” (Citing cases.)
The Court then said:
“The cited cases make it quite clear that a citizen and taxpayer may maintain a suit to prevent a misapplication of funds or to protect against unlawful official acts which could logically result in illegal exaction as well as to require reparation for that which has been done.” See Grooms v. Bartlett, 123 Ark. 255, 183 S.W. 282.
The record reflects that L. E. Tedford, William L. Ted-ford, and Vernon Noakes filed a claim each month, but without an itemized account as required by Section 17-704 of Ark. Stats. Anno., and obtained the routine approval by the County Court.
Considering all of the facts and circumstances peculiar to this case, we cannot agree with the Trial Court that in so doing, these three officials placed themselves beyond the jurisdiction of Chancery Court to require an accounting and restitution.
We hold that the Chancery Court has jurisdiction in this case to require an accounting and restitution by all of the county officers drawing funds under provisions of the invalidated acts. See Fuller v. State for Use and Benefit of Drainage District No. 3, Craighead County, 112 Ark. 91, 164 S.W. 770, and McCoy v. State for Use of Greene County, 190 Ark. 297, 79 S.W. 2d 94.
That part of the Decree holding Chancery Court to be without jurisdiction to require accounting and restitution by L. E. Tedford, William L. Tedford and Vernon Noakes is reversed and the cause is remanded with instructions to ascertain the amount of restitution to be made by each of these county officials. The Decree is otherwise affirmed.
Harris, C. J., dissents in part.
John Ward, Special Justice, dissents.
Fogleman and Holt, JJ., not participating. | [
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John A. Fogleman, Justice.
Hubert Blankenship was found guilty of keeping, conducting and operating a gambling house in violation of Ark. Stat. Ann. § 41- 001 (Repl. 1964). On appeal, he first asserts that his conviction should be reversed because the circuit court erred in denying his motion to suppress evidence obtained through a search of Apartment 25 of the Van Burén Motel, the place where the state alleged he carried on the operation. The basis of the attack upon the search was the assertion that the warrant therefor was unlawfully issued because probable cause was not shown by the affidavits upon which it is based. We hold that there was sufficient showing of probable cause.
The search warrant was issued by the circuit judge. It authorized the search of Apartments, 24, 25, 26 and 30 of the Van Burén Motel. The warrant recites that it is based upon the affidavits of Dwain Thompson and Curtis Balch. It includes a finding that the judge was satisfied that probable cause existed and that grounds for issuance of the search warrant existed.
In his affidavit, Thompson stated that: when he came to Fort Smith on February 25, 1974, on a special assignment to investigate gambling activities in Crawford and Sebastian Counties, he talked to Detectives Balch and Jankowski of the Fort Smith Police Department’s vice squad and they gave him a telephone number (474-3508), which they believed to be in use in gambling activities; on the following day, he made two calls to this number and recorded the conversations on tapes and transcriptions of these conversations were attached as a part of his affidavit; he obtained a copy of records of the Southwestern Bell Telephone Company showing that this number was listed in the name of Hubert Blankenship at Apartment 30, Van Burén . Motel in Van Burén; two days later he went to the motel and sketched its layout, showing the location of motel room 30, and this sketch was made a part of his affidvait. The transcript of the telephone calls revealed that: Thompson had talked with a person who identified himself as Bobby; Bobby could not give Thompson the “scratches” when he called at 10:00 A.M., but later had them and stated them in nine races; Thompson asked for Hubert, but was told that he was “out on the run somewhere”; when Thompson tried to place a bet, Bobby refused to take it because he did not know the caller, who had been identified to him only as R.A., a salesman for Jimco Electronics, in town for three or four weeks, but said that Hubert would return in about 15 minutes and might take it; about an hour later when Thompson called, the person answering identified himself as Hugh, but Thompson addressed him as Hubert and again identified himself as R.A.; the answering person said, “R.A., I have never played with you;” “I can’t fool with you until I find out who you are. . .”, “. . .if you’ll find somebody, call me, . . .” and “. . .just find somebody that I know that knows you and we might do some business”.
In his affidavit Balch stated that a reliable, confidential informer, who had previously given him reliable information on gambling activities had related, on February 28, 1974, that he had personally placed bets with Billy Reeder at Apartment 17 of the Van Burén Motel, had seen numerous betting slips, racing forms and scratch sheets there and had used telephone number 474-8722 in placing bets with him on numerous occasions, and that Bobby Plymale and Hubert Blankenship were booking together in Apartment 25 and had access to Apartments 24 and 26, which could be used for booking purposes by running the telephone cord out the window or under the floors into those rooms, and that théy sometimes used Apartment 30, where Blankenship lived, for booking purposes.
We have no hesitation in holding that these affidavits, considered together, are sufficient basis for a determination of probable cause for a search of Apartment 25, and rejecting appellant’s arguments that the affidavits contain only affirmations of suspicion and belief, or conclusions of the complainant. Furthermore, unlike the situation in Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204, the affiant Balch did state reasons for his giving credence to the statements of the informer. In Cockrell, the affiant did not even know his informant and had no knowledge of his reliability. As in Flaherty v. State, 255 Ark. 187, 500 S.W. 2d 87, we accord some weight to the findings of probable cause by the issuing judge and hold that the affidavits presented, when considered together, constitute a substantial basis in support of that determination. It is true that we held in Cockrell that oral statements not reduced to writing and accompanied by affidavit could not be considered in determining probable cause. Here, the Aguilar test requiring that the magistrate be informed of underlying circumstances supporting a statement as to the reliability of a confidential informer was unquestionably met. The affidavit of Thompson clearly corroborated the statements of the informer to Balch. See Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed. 2d 723; Bailey v. State, 246 Ark. 362, 438 S.W. 2d 321. See also, Spinelli v. U.S., 382 F. 2d 871 (8 Cir., 1967). We find no reason why we should consider the two affidavits separately in determining the propriety of that finding, as appellant does, on the premise that the question must be decided upon the basis of the Balch affidavit alone because Thompson did not mention Apartment 25 in his affidavit.
Blankenship requested that the circuit judge give instructions defining offenses covered by Ark. Stat. Ann. §§41- 2030, 41-2003 and 41-2004 (Repl. 1964), as lesser included offenses. The statute defining the crime of which Blankenship was convicted makes the keeping, conducting or operation of a gambling house or place where gambling is carried on, or the setting up, keeping or exhibiting of a gambling device, a felony. Under that statute, one who is interested, either directly or indirectly, in the operation of the gambling house or the setting up or exhibition of the gambling device, either by furnishing money or other articles for either of those purposes is guilty of the offense.
In viewing the court’s action, we will first consider Ark. Stat. Ann. § 41-2003, which makes the setting up, keeping or exhibiting of a gaming table or gambling device adapted, devised or designed for the purpose of playing any game of chance, at which any money or property may be won or lost, a misdemeanor. Betting on horseracing has been recognized as a game of chance as defined by that statute. Albright v. Muncrief, 206 Ark. 319, 176 S.W. 2d 426. A gambling device under both statutes includes instruments and devices which are not gambling devices per se when they are used for gambling purposes. Albright v. Muncrief supra. Even though Ark. Stat. Ann. § 41-2003 may define a lesser offense that is included in the felony defined by § 41-2001, it was not error to refuse this instruction because Blankenship was either guilty of operating a gambling house or guilty of nothing at all. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. To say this, however, requires a review of the evidence.
Lt. Dwain Thompson of the Arkansas State Police called telephone numbers given him by a confidential informer. The first call resulted in a conversation with a man who said, in response to Thompson’s inquiry, that he did not have the “scratches”, but would have them in about 15 minutes. On a second call to the same telephone number, the man who identified himself as Bobby refused to accept a bet Thompson sought to place, but said that Hubert, who was not in at that time might take his bet. When Thompson called back 45 minutes later, Hubert would not take his bet either, but said that he would if Thompson would get a recommendation from someone with whom Hubert was betting. Thompson then enlisted the aid of other officers and went to Room 25 at the Van Burén Motel and, upon being admitted, found Bobby Plymale and Hubert Blankenship there. In the room, he saw two telephones, which were constantly ringing and directed State Policeman Green and Sgt. Phillips to hook tape recorders to them and record any calls that came in. Sgt. Bradford was assigned to the confiscation and labeling of all evidence that might be used in bookmaking.
Sgt. Bradford found and took into his possession a ledger, three sheets of yellow paper with tickets wrapped inside them, a cigar box containing tickets, three sheets of yellow notebook paper, newspapers containing current racing forms, telephones, some yellow legal pads and some checks. Sgt. Phillips recorded calls from persons attempting to place bets.
An off-track establishment maintained for the purpose of receiving and making bets on horse races is a gambling house, regardless of whether betting on the races is forbidden by statute, and its operation is a felony. Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421. In this case Blankenship was, under the evidence, either operating a bookmaking establishment, i.e., running a gambling house, or he was guilty of nothing at all. The devices seized, therefore, were gambling devices, only if he were actually running a gambling house or was interested in its operation. See Bostic v. City of Little Rock, 241 Ark. 671, 409 S.W. 2d 825; Burnside v. State, 219 Ark. 596, 243 S.W. 2d 736; Albright v. Muncrief, supra.
The state relies upon Flaherty v. State, 255 Ark. 187, 500 S.W. 2d 87, but this case differs from that in that all the elements of a violation of § 41-2003 were charged in the information here, but not there. We found it unnecessary, in that case, to consider the question whether the articles there seized were gambling devices. Under the evidence here, they were, but only because the operation under the evidence, was, in fact, a gambling house.
By applying the identical process of reasoning it is clear that there was no error in denying instructions that would have permitted a conviction under Ark. Stat. Ann. § 41-2004. There was no evidence which would have supported a convic tion under Ark. Stat. Ann. § 41-2030 because there was no attempt made to prove a specific bet made by Blankenship.
The judgment is affirmed. | [
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Conley Byrd, Justice.
A jury convicted appellant John Henry Curry of delivering a controlled substance (marijuana) and fixed his punishment at five years in the penitentiary. For reversal he contends that the evidence was insufficient to sustain the verdict.
The record shows that P. J. Randall, an undercover police officer, casually met appellant in a bar and asked him if he knew where Randall could “cop a lid”. When appellant replied that he did, Randall slipped appellant SI5 and appellant left on his bicycle. When appellant returned he gave Randall a “lid” of marijuana. Thereafter, the two of them and appellant’s girl friend smoked a marijuana cigarette. On cross-examination Randall admitted that he already knew the price of a “lid” and that there was no discussion as to price with the appellant.
Our Controlled Substance Act, Ark. Stat. Ann. § 82-2601(f) [Supp. 1973], provides:
“ ‘Deliver’ or ‘delivery’ means the actual, construe tive, or attempted transfer from one person to another of a controlled substance in exchange for money or anything of value, whether or not there is an agency relationship.”
Appellant argues that the foregoing definition does not contemplate a situation, such as here, in which an undercover policeman furnishes the money and induces one to go get a controlled drug. We cannot agree with appellant’s contention. See United States v. Pruitt, 487 F.2d 1241 (8th Cir. 1973). Thus, as we read the definition set out above, it makes no difference, on a motion for directed verdict, whether the transferor acts as an agent of the purchaser or the seller. The act is condemned anytime the transfer is “in exchange for money or anything of value.”
Affirmed. | [
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Carleton Harris, Chief Justice.
Appellee, Jack Collier East, Inc., hereafter called East, instituted suit against appellant, Anthony Ragar and his then wife, wherein East sought to declare in default a promissory note secured by a mortgage on appellant’s home because of the failure of Ragar to pay a $312.50 mortgage insurance premium, which, because of error on the part of an East employee, had not been collected at the time of closing. Ragar denied that he owed the premium; the court found that appellant was not in default, denied the foreclosure, but gave appellee judgment for the $312.50. From the decree so entered, appellant brings this appeal.
For reversal, three points are alleged, but all relate to whether there was a mutual mistake, or a unilateral mistake on the part of appellee.
The evidence reflects that appellant purchased a home in Little Rock belonging to Roy Rainey through John Hughes, a realtor of Little Rock. It was necessary that the purchase be financed, and Hughes contacted several mortgage bankers to ascertain interest rates and closing costs; he and Ragar decided that appellee was the most competitive of the ones contacted. Thereafter, the loan was processed, but at the time it was closed, Rosa Perrien, Secretary of Standard Abstract & Title Company, who prepared the closing statement and handled the closing, failed to collect a charge for a mortgage insurance premium of $312.50. Ms. Perrien testified that this was not collected because appellee company had failed to instruct her to collect it. The charge for coverage, termed MGIC, insures the mortgagee that the borrower will pay the ‘ top portion” of the loan. Linda House, an employee of Jack Collier East, testified that she prepared the closing instructions and initial Truth in Lending statement for the Ragar loan and that she made an error. The witness said that she had only been in that particular department for approximately one month, and that the mistake occurred because of inexperience. Ms. Perrien testified that about a week after the loan was closed, Linda House called her, telling her about the mistake, and asked Ms. Perrien to contact Ragar and explain to him that the amount had not been collected due to such mistake. The witness said that Ragar told her he would send her a check, but the next day called and said that he had talked with his attorney; that he did not feel that he had to pay the premium and he would not send the check.
Thomas Purifoy, Vice President of appellee company, testified that Mr. Ragar was aware that the mortgage insurance charge would, be made because he (Purifoy) discussed the matter with Ragar himself.
Hughes testified that all bankers have a mortgage insurance requirement, and he said that he discussed with the Ragars the down payment and all closing costs. When asked if he discussed the mortgage insurance requirement, Hughes replied, “Definitely”; that the matter was mentioned several times.
Mr. Ragar testified that he did not have any conversations with East employees about Mortgage Guaranty Insurance premiums; and that he did not discuss two ways of handling the insurance, as testified to by Hughes. He said that he didn’t understand what the MGIG insurance was for; the witness stated that Rosa Perrien called him, notifying him that there had been a mistake, not a week after the closing (as she had testified) but rather two weeks later. He said that he told her that if he owed the amount, he would pay it, but that he subsequently talked with attorneys, and on the advice of the latter, told Ms. Perrien that he had been advised he didn’t owe it. Subsequently, Purifoy called him about paying the money, but Ragar replied, “I have been advised that I do not owe the money, and I said ‘I couldn’t pay you right now if I wanted to, because I don’t have it’.” The only other pertinent fact to mention is that the Truth in Lending statement, prepared by Linda House, did not include the $312.50 charge.
The Truth in Lending Statute, 15 USCA § 1640, provides:
“(a) Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to that person in an amount equal to the sum of
(1) twice the amount of the finance charge in connec tion with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney’s fee as determined by the court.
(b) A creditor has no liability under this section if within fifteen days after discovering an error, and prior to the institution of an action under this section or the receipt of written notice of the error, the creditor notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to insure that the person will.not be required to pay a finance charge in excess of the amount or percentage rate actually disclosed.
(c) A creditor may not be held liable in any action brought under this section for a violation of this part if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”
Here, we do not have a case where a charge was erroneously itemized, but rather where the charge was not reflected in the closing statement. Nonetheless, the provisions just quoted would appear to be applicable, for Ms. Perrien testified that Ragar was notified of the mistake (in not including the charge) in approximately a week. Ragar testif ied that he'was not notified for two weeks that a mistake had been made. Be that as it may, we have not only a conflict of when the notice was given (in which case the chancellor would properly determine the conflict of evidence), but actually, under Ragar’s own testimony, he was notified within 15 days; not only that, but the record clearly discloses that he did not send to appellee any written notice of the error, nor did he institute any action. So — appellant is not entitled under the Truth in Lending Act to any relief.
It thus appears that the litigation is to be determined simply on the basis of which witnesses the trial court believed, although appellant argues that the mistake occurred only on the part of East, i.e., there was a unilateral mistake, and therefore parol evidence was not admissible. But it is apparent that if the court believed appellee’s witnesses, the failure to include the charge in the closing statement really constituted a mutual mistake, i.e., both parties already understood that the charge would be made. Parol evidence is admissible to show a mutual mistake. L. O. Galyen and Freda Galyen v. Mrs. Opal Gillenwater, 247 Ark. 701, 447 S.W.2d 137. Certainly, the testimony concerning the date the appellant learned of the mistake was pertinent to the issue, and the testimony of Hughes and Purifoy relative to the fact that Ragar had been informed that such a charge would be made was strong evidence of a mutual mistake.
As stated, in the final analysis, we consider that only fact questions were involved, and where the crucial issue is the credibility of the parties testifying, the chancellor is considered to be in a much better position than the appellate court to test such credibility. Dearien v. Lancaster, 221 Ark. 98, 252 S.W.2d 72. The testimony of appellee’s witnesses, evidently believed by the chancellor, was convincing evidence that Ragar was aware that the charge for MGIG insurance would be made.
Affirmed.
Byrd, J. dissents.
Appellee cross-appealed because of the failure of the court to order the foreclosure, but the cross-appeal is not here pursued.
Mortgage Guaranty Insurance Company.
First 20%, the balance of the payments being secured by the mortgage.
[4]We have not included subsections (d) and (e) because they are not pertinent to this cause of action. | [
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George Rose Smith, Justice.
The appellant was charged with first degree murder, the information asserting that she shot her husband on October 31, 1973. The jury found her guilty of second degree murder and fixed her punishment at imprisonment for 21 years. The three points for reversal all have to do with the admissibility of evidence.
First, the prosecution introduced as witnesses Raymond Jackson and his wife, who testified that in November or December, 1971, or January, 1972, Mrs. Lang asked Jackson if he knew anyone that she could hire to kill her husband. Mrs. Lang indicated that she would pay the person with insurance money of from $10,000 to $30,000. Defense counsel objected to the testimony on the ground that the statements were too remote, having been made almost two years before the homicide.
The testimony was properly admitted in evidence. Threats, although not communicated to the victim of the homicide, are admissible as tending to show ill will and motive. Crowe v. State, 178 Ark. 1121, 13 S.W. 2d 606 (1929). Remoteness in time is to be considered when the interval between former difficulties and the homicide is so great as to indicate that they had their origin in independent causes. Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889). In McElroy v. State, 100 Ark. 301, 140 S.W. 8 (1911), we upheld the admissiblity of threats made about a year and a half before the homicide. Underhill points out, with regard to proof of marital difficulties, that the fact that such troubles cover a period of years and continue down to the death strengthens such evidence. Underhill, Criminal Evidence, § 645 (5th ed., 1957).
In the court below, the State, before calling the Jacksons as witnesses, had introduced Mrs. Lang’s confession. There she said that she and her husband had had nothing but trouble since they were married in 1953. “The trouble started nine months after we were married when Charles brought home gonorrhea and beat me up because I resented it. During our married life he has brought home gonorrhea on four occasions and each time fights would happen. During the past three or four years we have had no actual fights, but have argued constantly.” In the light of those circumstances the incident related by the Jacksons was not so remote as to be without probative value. The weight of the evidence was of course for the jury to determine.
Secondly, the prosecutor expressed surprise when the Jacksons testified that the incident occurred as far back as late 1971 or early 1972. The court permitted the State to prove, for impeachment purposes, that the Jacksons had told an investigating officer, a few months after the homicide, that Mrs. Lang’s statements to them had been made in the spring or summer of 1973.
The officer’s testimony was not admissible. Such prior inconsistent statements are sometimes admissible for impeachment but never as substantive evidence of their truth. Comer v. State, 222 Ark. 156, 257 S.W. 2d 564 (1953). “For such evidence to be admissible, however, the witness to be impeached must have given substantive testimony damaging to the party who seeks to attack his credibility. It is settled that inconsistent prior statements cannot be used to impeach a witness who merely fails to give the positive testimony that the party expected from him.” Milum v. Clark, 225 Ark. 1040, 287 S.W. 2d 460 (1956). That principle applies here. We cannot say that the error was not prejudicial, because it improperly suggested to the jury that the damaging statements might have been made only a few months before the homicide.
Thirdly, it is contended that the defense should have been allowed to introduce the results of a lie-detector test to which Mrs. Lang submitted. It is argued that the State and Mrs. Lang had stipulated that the test results would be admissible. The stipulation, however, plainly contemplated that the test would be made in the future, after the date of the stipulation. The test in question was made several weeks before the stipulation and consequently was not within the scope of the parties’ agreement.
Reversed and remanded for a new trial. | [
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Conley Byrd, Justice.
The issues in this case were before us in Ark. State Highway Comm. v. Scott, 238 Ark. 883, 385 S.W. 2d 636 (1965), wherein we held that the chancellor erred in sustaining a demurrer to the Commission’s evidence. Thereafter, that case became dormant without any further proceedings, order or judgment and the papers have been lost. When the Commission subsequently proposed to reconstruct Highway 71, adjacent to the Scotts’ lands, the latter brought this action to enjoin the Commission from entering upon the 23 foot strip in dispute until compensation was paid or secured. In defense to the Scotts’ petition for an injunction, the Commission set up its rights under a 1927 County Court Condemnation Order and a 1952 County Court Condemnation Order. No service of process was issued upon either order. The trial court after a hearing found the issues in favor of the Scotts and for reversal the Commission contends:
“POINT I. The trial court erred in finding that the 1927 County Court Order was ambiguous, inaccurate and incomplete and therefore was inadequate to condemn the land in controversy.
POINT II. The trial court erred in finding that the 1927 County Court Order nor any actions taken pursuant thereto were sufficient to give notice to the appellees or their predecessor in title.
POINT III. The trial court erred in finding that the Appellees had no notice of the 1952 County Court Order.”
The record shows that in 1927, Highway 71, as it goes by Scotts’ property, was put on a new location. In answer to interrogatories the Commission states that the centerline of the paved slab does not denote the centerline of the right-of-way claimed. The 1927 County Court Order described the new location of Highway 71 as follows:
“Beginning at station 55 plus 10 which point is the corner for Sections 20, 21, 29 and 28, Township 8 North, Range 32 West, being on the South corporation line of the City of Fort Smith, thence South 0 degrees — 10 minutes East 990 — 0’ to station 65 plus 00; thence South 0 degrees — 8 minutes East 800.0’ to Sta. 73 plus 00; thence South 0 degrees — 47 minutes West 925.1 ’ to Sta. 81 plus 25.1; thence South 0 degrees — 07 minutes West for a distance of 1398.34’ to Sta. 95 plus 23.44; thence around 10 degree curve to the left for a distance of 593.0’ to Sta. 101 plus 16.44; thence South 59 degrees — 11 minutes East for 1029.18; thence around a 10 degree curve to the left for a distance of 305.33’ to Sta. 115 plus 13.95, which point is on the Township line between Township 7 North and Township 8 North; thence South 89 degrees — 58 minutes East for a distance of500.35’to Sta. 120 plus 14.3 back, 114plus 06.9 ahead; thence North 89 degrees — 58 minutes East for 1562.6’; thence to the right along a 6 degree curve for 245’ to a point 35’ from said Township line to the center line of State Highway No. 71.
The right-of-way widths required for the alignment as hereinabove described being as follows:
Station to Station Lineal feet Width to left of Center Line Width to right of Center Line Total width feet
55 plus 10-121 plus 79 121 plus 79 equals 6669 35 35 70
66 plus 69-112 plus 09 4540 35 35 70
112 plus 09-115 plus 14 305 35
115 plus 14 equals 109 plus-125 plus 00 1593 45 All that part lying 35’ to right of center line and in Twp. 8 North Range 32 West 45
125 plus 00-129 plus 69.5 469.5 35 35
129 plus 69.5-132 plus 15 All that part lying to the left and 35’ from center line in Twp. 8 North Range 32 West.”
The record shows that the 1927 County Court Order was based upon Job No. 404. Thereafter, Federal Aid was obtained and the construction was done under Job No. 468.
James Mickle, a consulting Civil Engineer, testified for the Scotts that in attempting to plat the 1927 County Court Order from the point of beginning, he found a 5000 foot error. When he attempted to plat the description in reverse order he found a 31.4 foot error. There was also a 31.4 foot error between the 1927 County Court Order and the construction plans for Job No. 468. Upon platting both the 1927 County Court Order and the 1952 County Court Order, Mickle found that the centerline for the 1927 County Court Order was 29.43 feet North and East of the Centerline of the 1952 County Court Order at the point closest to Scott’s property. On cross-examination Mickle, as abstracted by the Commission testified as follows:
“The first column in this Court Order is 55 plus 10 which also appears on the first page and it sa,ys 55 plus 10-121 plus 79. The second line 121 plus 79 equals 6669 feet which is obviously the distance from 55 plus 10 to 121 plus 79. Okay, the next column then says without any equation 66 plus 69 to 112 plus 09 is 4540 feet. It never does say that station 121 plus 79 equals 66 plus 69, although perhaps this is what they intended it to be. The point of curvature as listed on page one is 95 plus 23.44 and the point of curvature on page two is not listed. It just tells you the width of the right of way between different stations, but it never does tell you where the point of curvature is. I think that we totaled the distances between the total length as listed on page one of the County Court Order and the total length as listed on page two. We probably found out that there was an apparent discrepancy which may have been able to have been explained by the stationing. But it does not give the point of curvature of the curve in question so there is no way that you could determine coming from the north and running south where that point of curvature was from this Court Order. The point of curvature that I think you have been referring to is at station 95 plus 23.44. The 10 degree curve referred to in the County Court Order is at station 95 plus 23.44.”
Appellee, Thomas Nelson Scott, testified that he knew nothing about the 1952 condemnation order. He readily admitted that the highway was widened three feet next to his property but testified that he agreed with a representative of the Highway Department that the Commission could enter and extend the highway 36 inches on his side and the Highway representative in consideration thereof agreed to shoot and seal the space between his concrete and the pavement with surface material to keep down dirt and chug holes.
Scott’s testimony was corroborated by Cecil Dunn, the Skelly Oil Company Distributor at the time. Mr. Dunn had some contact with representatives at the same time relative to the location of some signs. The replacement of the signs at that time corresponds with the Scotts’ present contention with reference to the location of the Highway 71 right-of-way.
Billy F. Prince, a surveyor for the Commission for 23 years, testified that he had no trouble locating the centerline of the 1927 County Court Order. He admitted that the description contained a 5000 foot error if you started at the beginning and that there was a 30 foot error if you surveyed the description backward. However, it developed on cross-examination that in doing his surveying he had a copy of the 1952 construction plans, Job No. 4371, a copy of the plans for Job No. 468 and a copy of the 1927 order but in making his survey he started from and stopped at two reference points on the Job No. 468 plans where bridges had been installed.
David Kit Carson, an engineer for the Highway Commission, testified that he was able to plot the 1927 County Court Order description. In comparing the centerline of the roadway as called for in the 1927 order with the 1952 order, there was a 31 foot error on the south end and a 5200 foot error on the North end. However, he found that the errors were corrected when reference was made to the construction plans.
POINT I. Ordinarily a property owner has no trouble in determining the actual location of a right-of-way when it is placed upon a new location. See Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W. 2d 432 (1965), where the new location was cut through the woods. Here the taking was in an open field and the taking was under Job No. 404, whereas the actual construction was done sometime later under Job No. 468. Even the plans for Job No. 468 were drawn after the 1927 condemnation order. Two respectable engineers testified — one testifying that the 1927 order could be accurately plotted even though it contained two obvious errors and the other testifying that you could not plot the description from the starting point because of the 5000 feet error and that there was a 31.4 feet error when plotting the description backwards. We have searched the record to ascertain why one of the engineers should be believed over the other engineer and we have found nothing in the record or the briefs that would be convincing as to the accuracy of the testimony of either engineer. Under such circumstances we ordinarily defer to the judgment of the trial judge who had the advantage of seeing and hearing the witnesses. Consequently, we cannot say that the trial court erred when it found “that the 1927 County Court Order is ambiguous, inaccurate, and incomplete and therefore was inadequate to condemn any strip of land south and west of the slab as it now exists, and which is owned and claimed by [Scott].”
POINT II. Ordinarily an entry upon land is coterminous with one’s title. Here however, the Commission’s 1927 title is so defective that we cannot determine that it covers the area in dispute. There is nothing in the record to show an actual entry upon the disputed area — in fact the proof is rather clear that there was no entry upon the disputed area under the 1927 order. Consequently, we cannot say that the trial court was in error in finding that “the said 1927 County Court Order nor any actions pursuant thereto were sufficient to give notice to the plaintiffs or their predecessors in title or a reasonable opportunity to seek compensation for the taking contemplated by the [Commission] herein.”
POINT III. So far as this record shows the 1952 construction, was done within the 70 feet right-of-way obtained by the 1927 order. The Commission does not contend that the 70 feet taking in the 1952 County Court Order covers any area not covered in the 1927 order. While this circumstances leaves one to wonder why the 1952 order was entered without service of process, we can certainly understand why a property owner such as the Scotts would not know of its existence. Thus the question of whether the Commission entered under the 1952 County Court Order in making the three feet extension in 1952 or as Scott claimed by permission for their mutual benefit would turn upon an issue of credibility. We cannot say under this record that the Chancellor’s findings are contrary to a preponderance of the evidence.
Affirmed.
Harris, C.J., dissents. | [
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Conley Byrd, Justice.
This litigation arises out of an altercation between appellant James Owens and W. E. House, one of the partners in appellee, Bill & Tony’s Liquor Store. Appellee Maryland Casualty Company is the Workmen’s Compensation Carrier. Following the altercation Owens filed a common law action against House for an intentional and malicious assault. Owens then filed a claim for compensation with the Workmen’s Compensation Commission. The Commission allowed the claim and awarded compensation. On appeal to the Circuit Court the claim was dismissed on the theory that the filing of the common law action constituted an election of remedies. Owens appeals, raising only that issue. Appellees have filed in this Court a motion to dismiss for failure to comply with Ark. Stat. Ann. § 27-2127.1 (Supp. 1973).
MOTION TO DISMISS. Appellees point out that Ark. Stat. Ann. § 27-2127.1, limits the authority of trial courts in granting of extensions to file the record on appeals to those situations where it is necessary to include transcribed testimony. We recognized the problem in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973), and promulgated Supreme Court Rule 26A requiring that application for extensions be served upon opposing counsel. The record here shows that there was no transcribed testimony to be included in the record. However, within the 90 day period appellant filed a motion for extension and properly served appellees. The appellees purposely did not object to the extension and did not raise the issue here until after the action at law had been dismissed and appellant had filed his brief in this Court.
Since Ark. Stat. Ann. § 27-2106.1 (Repl. 1962), provides that the failure to file the record in this Court within 90 days, or any extension thereof, does not affect the validity of the appeal but only furnishes ground for such action as we deem appropriate, we must decide what action is appropriate. When we consider that the purpose of the restriction placed in Ark. Stat. Ann. § 27-2127.1, by Act 206 of 1971, was to eliminate unnecessary delays in the docketing of appeals, we hold that an appellee who does not object to the obtaining of such an extension at the first opportunity will be deemed to have waived the error. Nothing said herein should be construed as affecting our decisions with reference to the filing of the record after the 90 day period when no extension has been obtained or records filed beyond the seven months limit. See Bernard v. Howell, 254 Ark. 828, 496 S.W. 2d 362 (1973); Stebbins & Roberts, Inc. v. Rogers, Trustee, 223 Ark. 809, 268 S.W. 2d 871 (1954); and West v. Smith, 224 Ark. 651, 278 S.W. 2d 126 (1955).
ELECTION OF REMEDIES: The appellees, to sustain the trial court’s ruling that appellant is barred by the doctrine of election of remedies, point to the reasoning of this Court in Heskett v. Fisher Laundry & Cleaners Company, Inc., 217 Ark. 350, 230 S.W. 2d 28 (1950). In that case we held that the Workmen’s Compensation Act did not bar an employee’s common law action against an employer for a malicious and intentional assault and battery. In so holding we quoted from numerous authorities, including Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233, 72 ALR 108 (1930), and concluded:
“. . . We conclude that the ruje laid down in Boek v. Wong Hing, supra, is supported by sound reasoning and that appellant is entitled to elect to either claim compensation under the compensation act or treat the willful assault as a severance of the employer-employee relationship and seek full damages in a common law action. . .
Heskett v. Fisher Laundry & Cleaners Company, Inc., supra, did not involve the issue of whether such remedies were inconsistent and, of course, is not a binding precedent on that issue.
All authorities recognize that the election of remedies doctrine is a harsh one and that it should not be unduly extended, 25 Am. Jur. 2d Election of Remedies § 3 (1966). The Workmen’s Compensation authorities, 2 A. LARSON, Workmen’s Compensation Law § 67.22 (1975), point out that the doctrine is too harsh to be applied in Workmen’s Compensation cases. We pointed out in Gentry v. Jett, 235 Ark. 20, 356 S.W. 2d 736 (1962), that in “Workmen’s Compensation cases there appears to be an even less strict adherence to the election rule than in other cases.” However, we need go no further than the Workmen’s Compensation Act, Ark. Stat. Ann. ? 18-1318(e) (Supp. 1973), which specifically recognizes that the filing of an action at common law is not an irrevocable election of a remedy.
Furthermore, the record here shows that the same facts would support either a claim for compensation or an action at common law and that the defense would be the same to either action. Consequently, it is only by a slavish recognition of the doctrine and by a mechanical application of a fictional legal theory that it can be said that the two remedies are inconsistent.
Having determined that the doctrine of election of remedies is not applicable to Workmen’s Compensation claims made subsequent to the filing of an action at law, it follows that the circuit court’s order of dismissal should be reversed and the Commission’s award reinstated.
Reversed and remanded with directions.
Fogleman, J., dissents in part. | [
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George Rose Smith, Justice.
Sammie Lee Johnson was charged with robbery committed with a firearm, he being only 20 years old at the time. There was no real issue of guilt or innocence, because Johnson testified that he and Jim McGee, aged 27, committed the robbery, though Johnson denied that he had shot anyone. The jury, in finding Johnson guilty upon both counts, imposed sentences of 21 and 15 years. Counsel sets out six points for reversal but admits that two are without merit.
First, at the outset counsel contended that his client, an indigent, was entitled to a complete record of the voir dire examination of the jury. The court properly denied that request, holding that the defendant was entitled only to a record of each question thought to be improper. There is no requirement that an indigent defendant be supplied at public expense with such parts of the record as are not pertinent to any issue to be decided on appeal. Willis v. State, 42 Ala. App. 85, 152 So. 2d 883 (1963); State v. Badda, 66 Wash. 2d 314, 402 P. 2d 348 (1965); see also Draper v. Washington, 372 U.S. 487 (1963), and ABA Standards Relating to Criminal Appeals, § 3.3 (e) (Approved Draft, 1970).
Second, in his opening statement the prosecuting attorney said that the evidence would show that Johnson “is the one who fired at least five shots at three different individuals. He fired and struck Fred Arthur in the back.” Defense counsel objected: “I don’t believe that statement can be proved.” In fact the statement was substantially proved, there being testimony that Johnson fired as many as four shots in the cours? of the filling-station robbery.
The case falls within our recent observations in Foots v. State, 258 Ark. 507, 528 S.W. 2d 135 (1975): “It frequently happens that an attorney, in good faith, goes too far in telling the jury what he expects the testimony to show. Obviously a mistrial cannot be declared every time an opening statement is challenged by the other side.” Here there is no suggestion that the prosecutor acted in bad faith, nor was there even a request that the jury be told that opening statements are not evidence. Thus the objection was rightly overruled.
Third, there is no merit in the argument that the State should not have been allowed to cross-examine Johnson about whether he had committed robbery upon an earlier occasion, such proof being pertinent to the witness’s credibility. Ballew v. State, 246 Ark. 1191, 441 S.W. 2d 453 (1969). There was no request that the court limit the evidence to the issue of credibility alone; so the court’s failure to so limit the issue is not before us. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611 (1945).
Fourth, it is argued that the trial court, in allowing credit for pretrial jail time, should have treated that period of confinement just as if Johnson had been confined in the penitentiary, with an attendant accumulation of credit for “good time.” That argument was rejected in West v. State, 257 Ark. 582, 518 S.W. 2d 497 (1975), and we find no reason to disturb that holding.
Affirmed. | [
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Lyle Brown, Justice.
This is an appeal from a conviction of first degree murder in which appellant received a life sentence. Appellant, Travis L. B. Wilson, lists six points of asserted error in the trial of his case. After a brief statement of background facts, we shall list those six points and discuss them separately. The evidence will be treated more particularly under the points for reversal. Suffice it to say that the body of Jewel McKown was found in close proximity to a trailer court where she lived, apparently slashed to death. Her body was discovered on the morning of July 5, 1974, near the mobile home which she rented, and which had been the scene of a gathering of two couples including Jewel and appellant, beginning late in the afternoon of July 4. Some intoxicants were consumed. It is apparent that around midnight one of the couples left while Miss McKown and Wilson remained inside the trailer. Appellant is said to have gone to the home of his parents in Redfield during the early morning hours and confided to his parents that he was in trouble and wanted to go to California. The parents took him to the bus station in Little Rock. The local officers called ahead and appellant was found at the bus station in Amarillo, Texas. He waived extradition and was returned to Grant County and charged with murder in the first degree.
Point I. The trial court erred in refusing to comply with the Mc.Xabh-Mailory rule. We are again urged to adopt the McNabb-Mallory rule as it exists in federal practice, holding that failure to promptly arraign an accused will render a confession made by him during a confinement inadmissible. We decline to adopt the rule and recently so held in Mitchell v. Bishop. 248 Ark. 427, 452 S.W. 2d 340 (1970), holding Ark. Stat. Ann. § 43-601 (Repl. 1964) to be directory only.
Point II. The purported confession does not meet the test of voluntariness. Appellant insisted that he was under the influence of intoxicants to a heavy degree on the night in question. When appellant was apprehended in Amarillo, the arresting officer testified that he went over the Miranda warnings with appellant, explaining'them in considerably more detail than the form language, and that appellant signed the waiver. Three statements were given to the officer - first, without recordation, just oral; second, oral only again because the tape recording machine was not properly operated; and, third, on a tape recorder and transcribed. The appellant signed the transcribed statement. Appellant said he understood the Miranda rights save an idea of his own about the time for appointment for an attorney. The appellant testified to the voluntariness and to the cooperativeness of the arresting officer. Appellant’s main attack on the statement is his alleged intoxication, lack of sleep and food, and because of his lack of intelligence. We point out that the issue of intoxication was presented by conflicting testimony. David Smith and Melba Stone testified that in their opinion he was not drunk on the night of the alleged offense. The appellant’s brother testified that when the appellant sobered up, he remembered the events that transpired while he was drunk.
Appellant also makes much of a lack of intellectual capacity chiefly through the introduction of letters written while in the State Hospital. The appellant, however, had a tenth grade education, and his writing and spelling prowess do not comport with his insistence on being intellectually backward.
Appellant also alludes to the nature of the custodial investigation as extremely lengthy, however, the interrogating officer testified that the total time of the interrogation was a maximum of one and one-half hours and that it was of such length only because the tape recorder was not in operating condition the second time the statement was taken. Also, appellant testified to the cooperative nature of the interrogating officer. In short, the trial court’s finding of voluntariness was proper when viewed in the total circumstances and the confession was therefore properly admitted in evidence.
Point III. The verdict is not supported by substantial evidence as regards the elements of murder in the first degree. The elements of malice and premeditation are very much in evidence and are certainly sufficient to support the verdict. Malice can be implied from the circumstances of the killing. Malice is certainly in evidence in this case by the use of a barbecue fork or other similar object used to stab the deceased repeatedly in the chest and neck areas, even to the point of puncturing the heart eight or nine times, and by the use of a butcher knife to slash the throat of the deceased. The nature of the wounds and the weapons used are certainly sufficient to show the manifestation of “an abandoned and wicked disposition” on the part of assailant, and concurrently is evidence of a “deliberate intention of mind unlawfully to take away the life of a human being”. Ark. Stat. Ann. § 41-2203, 2204 (Repl. 1964). Appellant states that the requisite element of first degree murder, premeditation, cannot be presumed but must be proven beyond a reasonable doubt. Of course we have many times held that the element of premeditation can be inferred from the circumstances of the case. Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 435 (1973). The circumstances of this case are certainly ample for such an inference to have been drawn by the jury. The appellant’s confession admitted a noticeable gap between an act of intercourse between him and the victim, and his choking the girl. There was the binding of the deceased’s hands and the gagging with a towel around the head, the dragging of the body to the fence line, the cleaning up of the porch, presumably with a wet mop with blood stains thereon. There was also evidence that there may have been a struggle as evidenced by scratches on appellant’s chest and stomach.
Under this point appellant challenges the proof of the corpus delicti on the part of the state’s evidence. The point is hardly worth comment because the evidence of the corpus delicti is overwhelming from all the proof in the case. Hays v. State, 230 Ark. 731, 324 S.W. 2d 520 (1959).
Point IV. The trial court failed to timely convene a pretrial evidentiary hearing to determine the admissibility of a purported confession made by the appellant. To support this point appellant says: “The record shows that more than three weeks prior to trial, appellant filed a written motion praying that the court convene a pre-trial Denno hearing to determine the admissibility of certain incriminating statements that were allegedly made by appellant, and specifically whether any confession was voluntarily made by him”. We are cited no authority for the asserted requirement that the Denno hearing must be convened well in advance of the date set for trial. In Sheppard v. State, 239 Ark. 785, 394 S.W. 2d 624 (1965) we apparently approved the procedure of the court calling a Denno hearing in chambers when the purported confession is presented for admission. Then in Hall v. Stale, 242 Ark. 201, 412 S.W. 2d 603 (1967) it is perfectly clear that the Denno hearing was convened after the trial was under way but before the confession was placed in evidence.
POINT V. The trial court should have granted a mistrial when the State produced the testimony of a cellmate to the effect that appellant confessed the crime without first ordering a Denno hearing. After careful consideration we are of the conclusion that the admission of the testimony constituted harmless error beyond a reasonable doubt. The United States Supreme Court reached the same conclusion in Milton v. Wainwright, 407 U.S. 371 (1972). In Milton the prosecution clothed a detective as a prisoner and placed him in the cell with Milton. The accused made severe incriminating statements amounting to a confession. The trial court admitted the testimony of the detective. The Court said in Milton:
On the basis of the argument in the case and our examination of the extensive record of petitioner’s 1958 trial, we have concluded that thejudgment under review must be affirmed without reaching the merits of petitioner’s present claim. Assuming, arguendo, that the challenged testimony should have been excluded, the record clearly reveals that any error in its admission was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967). The jury, in addition to hearing the challenged testimony, was presented with overwhelming evidence of petitioner’s guilt, including no less than three full confessions that were made by petitioner prior to his indictment. Those confessions have been found admissible in the course of previous post-conviction proceedings brought by petitioner in his attempts to have this conviction set aside, and they are not challenged here.
In the case at bar a confession which was found to be voluntary was before the jury. The physical facts which were entirely undisputed, corroborated many important facts revealed by the confession. They revealed overwhelming evidence of appellant’s guilt. The prisoner who was produced as a witness was cross-examined in great detail and there was no intimation that appellant was trapped or coerced in any manner.
Point VI. The court should have granted a mistrial because in his closing argument the Slate's attorney referred to appellant's attorney as "appointedcounsel". While we do not find the statement in itself to be prejudicial we think the better practice would be to abstain from such designation.
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] |
RAY THORNTON, Justice.
Appellee, Gregory Larimore, stice. first-degree murder of June Larimore, his wife, in 1990 and sentenced to fife imprisonment. On May 26, 1992, we reversed the conviction and remanded the case for a new trial because the jury was impermissibly allowed to take excluded evidence into the jury room for deliberation. Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). After retrial in 1993, appellee was again convicted and sentenced to twenty-five years’ imprisonment. On May 23, 1994, we affirmed the second conviction. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Appellant then filed a petition for postconviction relief under Ark. R. Crim. P. 37, based on allegations of prosecutorial misconduct in faffing to disclose exculpatory evidence to the defense. The State moved to dismiss, and appellee amended his petition to assert, in the alternative, that he was entitled to relief through a writ of error coram nobis. The trial court dismissed the motion, and appellee appealed to this court from that order of dismissal. On February 10, 1997, we affirmed the motion to dismiss the Rule 37 petition, but determined that the time limits of a Rule 37 petition are not applicable to a writ of error coram nobis and granted leave to the circuit court to determine whether a writ of error coram nobis should be issued. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997); see also, Larimore v. State, 339 Ark. 167, 3 S.W.3d 680 (1999). On March 25, 1999, the Crittenden County Circuit Court granted appellee’s writ of error coram nobis. The writ set aside appellee’s 1993 conviction and ordered a new trial. It is from that order that the State brings this appeal. Because we find no reversible error, we affirm the trial court.
Shortly before noon on January 11, 1990, the body of June Larimore was found on the bedroom floor of her Blytheville home. She had been stabbed in the face, torso, arms, hands, and legs 134 times, apparently with a knife that had been wiped clean and replaced in a cutlery block in the kitchen. The body was nude except for panties rolled down around the hips in a manner which would be consistent with dragging the body by the hands from the bed to the floor. There was a deep stab wound in the pelvic area, but no corresponding cut in the panties. Samples from her vagina did not indicate that a sexual attack had occurred. Body temperature was 91.2 degrees at 12:10 p.m.
When the body was found, a nearby outside door was unlocked, the stereo sound system was still on, her watch and rings were still in place, and her open purse containing cash appeared not to have been disturbed. There was evidence that a violent struggle had occurred in the bedroom, and the bathroom sink appeared to have been wiped off, but the rest of the home appeared to be undisturbed except for the telephones. A telephone in the living room and a cordless phone in the hallway were unplugged, and the cord to a phone in the bedroom was severed. The sheets on the bed were soaked with blood, and some of appellee’s clothes were found under the corpse.
Appellee, June Larimore’s husband of one year, arrived for work at a family business at about 6:45 a.m. on the day June’s body was discovered and worked routinely throughout the morning, showing no signs of stress or emotional upset. When contacted by the Blytheville police, he said that he and June had come home from a wake between nine and ten the previous evening. Appellee told the police that he had fallen asleep on a couch, woke up at 6:00 a.m., and left for work at the family farm supply business at 6:30 a.m. on the morning the body was found. In another statement, he said he awoke around 3:00 a.m. and got into bed with June, where he slept until 6:00 a.m.. Another version was that he woke up at 3:00 a.m., but decided not to disturb June by getting into the bed. He said that when he left home at 6:30 a.m., June was alive and asleep, wearing only a pair of panties. It was undisputed that appellee reported to work at the family business shordy after 6:45 a.m., that he had no blood on him, and that his appearance was normal.
No motive was established for the murder. The State’s case was wholly circumstantial, structured on the theory that she was murdered between 2:00 a.m. and 4:00 a.m. and, hence, was not alive when appellee left for work at 6:30 a.m. Thus, the time of death was a crucial element in the case. The State had to establish that the murder took place before appellee went to work. The State attempted to prove this element with the testimony of a forensic pathologist, Dr. Fahmy Malak, the former state medical examiner, who testified that the victim died as early as 1:00 a.m. or 2:00 a.m. on the morning the body was found. Appellee provided expert testimony which contradicted Dr. Malak’s opinion of the time of death and suggested that death occurred between 7:00 a.m: and 8:00 a.m. The prehminary state medical report of the time of death had shown the time as 7:00 a.m., but that line had been whited-out and the word “unknown” substituted. Copies of this original document showed the word “unknown” but did not reveal the whited-out alteration. Appellee was found guilty of June Larimore’s murder in 1993. We affirmed appellee’s conviction in 1994, and civil litigation ensued. During depositions for that litigation, it was discovered that prosecutorial misconduct had occurred. Specifically, it was discovered that the Blytheville Police Department knew that Dr. Malak had first concluded that the time of death was after appellee had left for work and this evidence was not given to the defense.
In 1997, this matter was once again before this court. See Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). In order to test whether a writ of error coram nobis must be filed within the time limits applicable to a Rule 37 petition, the State stipulated that material exculpatory evidence had been withheld and that this prosecutorial misconduct was a violation of the due process requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). The stipulation was conditioned upon the premise that even if the stipulated misconduct had occurred, the petition for relief was untimely; and the stipulation was to be withdrawn if the court decided the petition was not time-barred. On February 10, 1997, we affirmed the dismissal of appellee’s Rule 37 petition, but determined that the time limits for a Rule 37 motion are not applicable to a petition for a writ of error coram nobis.
We held that due diligence is required in making application for error coram nobis relief, and that because appellee’s petition for a writ of error coram nobis was not untimely, we granted leave to the circuit court to determine whether a writ should be issued. The trial court conducted a thorough and careful review of appellee’s petition. At the conclusion of this review, the trial court granted appellee’s petition and the State appealed.
The State asserts two points for reversal. Because we consider the State’s second point on appeal to be the threshold issue we will address it before determining whether the trial court properly granted appellee’s petition for a writ of error coram nobis. The State argues that the trial court erred when it found that the concealment of exculpatory evidence constituted a Brady violation. As we con sider whether the State’s withholding of evidence was a Brady violation, it is useful to identify the evidence that the State is challenging. Specifically the trial court found the following suppressed evidence:
1. Dr. Fahmy Malak’s opinion given to Captain Hill of the Blythe-ville Police Department on January 12, 1990, that the time of death of June Larimore was “six, six to seven” o’clock.
2. Captain Hill informing Dr. Malak on January 12, 1990, that if the time of death was “six, six to seven” o’clock then appellee had an iron-clad alibi. Specifically, Dr. Malak told Captain Hill that he needed to look at the husband. In response to this advice, Officer Hill told Dr. Malak that appellee had an iron-clad alibi if the time of death was “six, six to seven” o’clock.
3. A taped phone conversation between Chief Christie and Dr. Malak on January 12, 1990, concerning the time of June Larimore’s death. Chief Christie of the Blytheville Police Department spoke with Dr. Malak on January 12, 1990, after Dr. Malak had spoken with Captain Hill, and Dr. Malak, without reviewing additional evidence, changed his opinion of June Larimore’s time of death to earlier in the morning, before six o’clock. Specifically, the conversation revealed that Chief Christie knew that Dr. Malak had spoken with Captain Hill earlier in the day. When Chief Christie asked Dr. Malak for his opinion of the time of June Larimore’s death, he gave an opinion of before six, early in the morning. At the time this opinion was given, Dr. Malak had not seen any photographs or the video of the crime scene.
4. A taped conversation between Chief Christie and Captain Hill on January 12, 1990, prior to the completion of the police investigation of June Larimore’s death in which they refer to appellee as “a son of a bitch” and in which Captain Hill states “we’ve got the son of a bitch.”
5. A demand made on January 12, 1990, by the Blytheville Police Department for a warrant for appellee’s arrest before the department had completed its investigation. At the time the warrant was requested, Chief Christie and Captain Hill knew that Dr. Malak had given an opinion that June Larimore’s time of death was “six, six to seven” o’clock and that after talking with Captain Hill, without reviewing additional evidence, Dr. Malak had changed his opinion. When the prosecutors refused to provide the arrest warrant the police department accused one of the prosecutors of favoritism.
The trial court, after identifying the exculpatory evidence that had been withheld from appellee, explained the ramifications of withholding such evidence. It found that the evidence would have: (1) been beneficial to appellee in framing questions to potential jurors in voir dire; (2) provided powerful ammunition to appellee for use during the cross examination of Captain Hill, Chief Christie, and Dr. Malak; (3) been useful in establishing biases of the Blythe-ville Police Department and Dr. Malak; and (4) provided valuable information for appellee to use during opening statement and closing argument. The trial court concluded that the suppressed evidence was material to the guilt and punishment and that if the evidence had been disclosed, there was a reasonable probability that the result of the proceedings would have been different.
The Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963) held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Id. In Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, (1999) the Court revisited Brady and explained its implications. It noted:
We have since [the decision in Brady] held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence. Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Moreover, the rule encompasses evidence “known only to police investigators and not to the prosecutor.” In order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.”
Strickler, supra, (internal citations omitted). The Court, in Strickler, also outlined the three elements of a true Brady violation. These components include:
(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.
Strickler, supra.
Applying this analysis to the case before us, we hold that the trial court correctly determined that the concealment of the exculpatory evidence constituted a Brady violation. First, we note that the evidence concealed was favorable to appellee both because it was exculpatory and because it was impeaching. Specifically, if the withheld evidence had been known to appellee his alibi would have been supported by the State’s expert witness and his testimony as to the time of death would have been contradicted. Moreover, the evidence could have been used to impeach Dr. Malak, Captain Hill, and Chief Christie. Additionally, appellee’s theory that the police were targeting him as the perpetrator of the crime without properly investigating the murder would have been bolstered. Accordingly, this evidence was favorable to appellee.
Next, we address the question whether exculpatory evidence was suppressed by the State willfully. This evidence was known by the Blytheville Police Department since 1990 and only after two trials was it provided to appellee. We note that at trial, the trial judge, Judge Pearson, had issued a discovery order requiring the State to provide appellee with all evidence relevant to June Larimore’s time of death. Although the prosecution may not have been specifically aware of the exculpatory evidence, we have stated that information held by the police is imputed to the prosecution. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). We conclude that the evidence was willfully suppressed by the State.
Finally, to establish a valid Brady claim it must be shown that appellee was prejudiced by the suppression of the evidence. We agree with the trial court’s findings that appellee was prejudiced by the withheld exculpatory evidence and that the suppressed evidence would have shown that Dr. Malak’s opinion as to the time of death, which had at one time supported appellee’s alibi, had been influenced and changed to assist the police and that this was not known at the time of trial by the trial court. We conclude that the trial court’s finding that “if said evidence had been disclosed to the defendant, there is a reasonable probability that the results of the proceedings would have been different” is not erroneous, and affirm.
Because the suppression of the evidence by the State meets the elements outlined in Strickler, and because the evidence was material to the outcome of the trial, we hold that the trial court correctly found that a Brady violation had occurred.
The gravamen of the other point on appeal is that even if a Brady violation was shown to exist, that violation did not support the granting of a writ of error coram nobis, and a new trial. The State argues that the standards for error coram nobis are higher than those which must be met to find a Brady violation and that the evidence presented to the trial court did not rise to the level required to grant appellee’s petition for the writ and for a new trial.
We recognize that a writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Literally, coram nobis means our court, in our presence, before us. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). The essence of the writ of error coram nobis is that it is addressed to the very court that renders the judgment where injustice is alleged to have been done, rather than to an appellate or other court. Black’s Law Dictionary 337 (6th ed. 1990). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Pitts, supra.
The trial court has discretion to grant or deny a petition for a writ of error coram nobis. Penn, supra. The petitioner seeking the writ has a heavy burden to meet. Id. On review we determine whether the lower court abused its discretion in granting the writ and a new trial. State v. Scott, 289 Ark. 234, 710 S.W.2d 212 (1986). We have outlined the following guidelines for trial courts to consider when determining whether to grant a writ of error coram nobis:
(1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;
(2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition;
(3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and
(4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts [relied] upon and not merely state conclusions as to the nature of such facts.
Pitts, supra. If it has merit, by all means a writ of error coram nobis should be granted; if the petitioner fails in his burden of proof, then at least a hearing will have resulted. Penn, supra.
We note that at different times throughout our jurisprudence we have used different phrases to articulate the standard for determining whether a petition for a writ of error coram nobis should be granted. For example, the language of Pitts, supra, articulated the very stringent standard that a petition for a writ of error coram nobis should be granted when an issue is not addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Id. For this proposition we cited Penn, supra, and Troglin v. State, 251 Ark. 644, 519 S.W.2d 740 (1975). The language used in those two cases is not identical. In Penn, Justice Hickman explained that a petition for a writ of error coram nobis should be accepted only if there is an error of fact extrinsic to the record “which might have resulted in a different verdict.” Id. at 573, 670 S.W.2d at 428. In contrast, according to the language of Troglin, as well as Pitts, the writ of error coram nobis secures relief from a judgment if the error of fact extrinsic to the record “would have prevented it rendition.” Troglin at 645, 519 S.W.2d at 741. We now conclude that both the “might have resulted” phrase and the “would have prevented” phrase turn upon the question of whether there was a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial. We note that the Supreme Court has adopted a similar standard for Brady violations in Strickler. Specifically, we hold that in our review of the granting of a petition for a writ of error coram nobis in this case and all future cases we will determine whether there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial.
In the case before us, the trial court held five days of hearings consisting of numerous witnesses on appellee’s petition for a writ of error coram nobis, reviewed briefs submitted by the parties, and reviewed the transcripts of appellee’s two prior trials and pretrials. In its twelve-page opinion which incorporated by reference a 228 page letter opinion, the trial court found that the prosecution suppressed and withheld favorable evidence from appellee. The trial court found that “the time of death was the sole issue of fact presented by the evidence” and the exculpatory evidence which was withheld related to this issue. The trial court also found that:
After throughly reviewing all of the old evidence in this case, and the new evidence withheld by the prosecution from the petitioner, the court finds the suppressed evidence to be material to the guilt and punishment and that if the said evidence had been disclosed, there was a reasonable probability that the results of the proceedings would have been different. Also judgment in this case was rendered while there existed facts which would have prevented its rendition if they had been known to the trial court.
Establishing the time of death was the key to the State’s case against appellee at trial. The State’s theory was that if the murder occurred prior to 6:30 a.m., appellee was the only person who could have committed the crime and used Dr. Malak’s opinion as to the time of death to establish this theory. The exculpatory evi dence, which had been concealed by the State and was unknown to appellee through no fault or negligence of his own, supported appellee’s alibi and contradicted the State’s only expert witness. Dr. Malak’s original opinion as to the time of death was about the time at which appellee was reporting to work. After Dr. Malak was informed by Captain Hill that appellee had an alibi for that time, Dr. Malak, without reviewing additional evidence, changed his opinion. Because this case involves material exculpatory evidence withheld by the prosecutor, a situation in which we have previously identified as worthy of error coram nobis relief, and because there is a reasonable probability that the judgment would not have been rendered if this withheld evidence had been known at the time of entry of the judgment, we conclude that the trial court did not abuse its discretion in granting appellee’s petition for a writ of error coram nobis, and ordering a new trial, and we affirm the trial court’s order.
We note that this decision does not impose restrictions on the use of other expert opinions or presentation of other theories relating to the question of guilt or time of death nor does this decision limit the production of additional evidence that may be useful in the development of the issues that may arise in appellee’s new trial.
Affirmed.
Glaze and Smith, JJ., dissent.
We note that Penn created an additional situation in which a writ of error coram nobis may be proper. In Penn, we held that the writ was available in the limited circumstances in which an exculpatory confession is discovered after an individual has been convicted and before he has completed his appeal. Penn, supra.
We note that the “might have resulted” language and the “would have prevented” language were both reflected in Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). The “might have resulted” language was used in Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990); Edgemon v. State, 292 Ark. 465, 730 S.W. 2d 898 (1987); and Williams v. State, 289 Ark. 385, 711 S.W. 2d 479 (1986). The “would have prevented” language was used in Bell v. State, 287 Ark. 430, 700 S.W. 2d 788 (1985); McCarty v. State, 335 Ark. 445, 983 S.W. 2d 418 (1998); Brown v. State, 330 Ark. 627, 955 S.W. 2d 901 (1997); Mosley v. State, 333 Ark. 273, 968 S.W. 2d 612 (1998) and Pacee v. State, 332 Ark. 184, 962 S.W. 2d 808 (1998). | [
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John A. Fogleman, Justice.
Appellants Freddie D. Freeman, John Arthur Bowden and Walter Bowden were found guilty of the murder of W. C. Anderson in the perpetration of a robbery and sentenced to life imprisonment. For reversal of their conviction, they assert error in refusal to grant separate trials, in admission of the testimony of a physician, of a confession of Walter Bowden, and of photographs of, and testimony about, an automobile belonging to Freeman. We find reversible error in the admission of the confession.
Anderson was killed on December 29, 1973 in North Little Rock. On December 31, 1973, about 9:30 A.M., Lt. Tucker and Sgt. May of the North Little Rock Police Department went to Southern Farms, where they found Walter Bowden, whom they took to the Homicide Squad Room at the North Little Rock Police Department, after having given him warnings about his constitutional rights as to interrogation pursuant to the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1965). There they interrogated Walter about his activities on the day of the homicide. When they were not satisfied with his answers, they obtained his consent to a polygraph examination, arranged for it to be conducted by Lt. Bob Bailey at Conway on New Year’s Day, and held Walter in the North Little Rock jail overnight. Walter had been told that he was a suspect in the homicide, but had not been charged. Although the officers did not consider that Walter was under formal arrest at the time, they said he was incarcerated, he was not free to leave but was kept in a cell. The circuit judge quite correctly held that, in actuality, he had been arrested.
After the test, shortly after noon, Walter was returned to the jail in North Little Rock. About 2:30 P.M., a new interrogation was commenced, after a new warning had been given Walter. When asked if he wanted to contact an attorney, he stated that he did not, but would like to contact his uncle, Jim Lindsey. Walter was permitted to call Lindsey, told the officers his uncle was coming down, and said that he did not want to make any statement until Lindsey came. Lindsey had not arrived by 3:30. Walter told Tucker that he had knowledge of the crime, but didn’t kill anyone and kept asking, “Well, I didn’t kill anybody, what charge are you going to place against me?” Tucker then contacted Pulaski County Deputy Prosecuting Attorney Jim Hamilton, who came to the jail about 4:10 P.M. Tucker told Hamilton, “We have a murder”. Hamilton was informed of what had taken place by Tucker, in particular the preliminary result of the polygraph test and Walter’s statement and question about charges. Walter asked Hamilton, “When I give a statement, do you have any idea what I will be charged with?”, or “When I give my statement, what’s going to happen to me?” Hamilton had been told that Walter had said he was present but didn’t kill anybody. Hamilton advised Walter that he could not make any promises but told Walter that if he had committed a crime, it was probably one that would not result in more than 21 years’ incarceration. Hamilton then left and Tucker received an affirmative reply when he asked Walter if he wanted to give a statement. Tucker reread a statement of Walter’s constitutional rights, after which Walter, who had then been in jail about 30 hours, made a statement admitting his participation in the robbery of Anderson, in planning it with Freeman, soliciting John’s participation and going with both to the scene in Freeman’s automobile, waiting for them and driving them away from the scene. The statement implicated both the others in the killing, but exonerated Walter from actual participation in person in the killing of Anderson in the perpetration of the robbery. Walter commenced the statement at 4:21 P.M., and by 4:36 P.M., it was completed, typed by Tucker and signed by Walter and by Tucker and May as witnesses.
Walter’s version was that he was promised a 21-year sentence if he were to give a statement and testify against the other two and that he signed the statement because of this promise and the threat that he would get the death penalty if he did not. Both Hamilton and Tucker deny that any mention was made of the death penalty.
On January 8, 1974, Walter was charged with robbery by an information filed by another deputy prosecuting attorney. Hamilton had related what had happened at the North Little Rock police station to other deputy prosecuting attorneys and played a minimal part in the decision on the filing of charges against the three appellants in that he only conveyed information to those who made the decision. It was Hamilton’s opinion, at the time, that Walter should be used as a witness against the others, because he had been cooperative. He stated that Walter continued to cooperate until he talked with the public defender. A first degree murder charge was filed against Freeman and John, but not Walter, on January 14. It was not until April 10 when an amended information was filed that all three were charged with the murder.
Motions for severance were filed by all three on June 18, 1974. On July 3, the state demanded the death penalty and the motions to sever were granted. On July 23, upon the state’s waiver of the death penalty, the state’s motion to consolidate was granted and the order granting a severance set aside. On July 15, the prosecuting attorney had written a letter to the public defender, who had been appointed to represent all three appellants, in which he offered to waive the death penalty if Freeman and John entered pleas of guilty to the murder. He further offered to nolle prosequi the murder charge against Walter if he would plead guilty to the charge of robbery and to recommend a sentence of ten years and to waive the death penalty as to John and Freeman if he would testify against them should they plead not guilty. Walter declined this offer in a hearing before the circuit judge, in camera, on July 22.
In reviewing the admission of a confession over an objection for alleged involuntariness, we make an independent determination based upon the totality of the circumstances and reverse the action of the trial judge only when we find his finding to be clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. Of course, a confession given by an accused while in custody is presumed to be involuntary, and the burden of proving that it was actually voluntary rests upon the state. Scott v. State, 251 Ark. 918, 475 S.W. 2d 699; Johnson v. State, 248 Ark. 184, 450 S.W. 2d 564, (on petition for post-conviction relief) 249 Ark. 268, 459 S.W. 2d 56.
In order to be voluntary, a confession must have been made in the absence of threat of injury or promise of reward and free from the taint of official inducement proceeding from either hope or fear. When threats of harm or promise of favor or benefits are used to extort a confession, it is attributable to such influences and not voluntary. Dewein v. State, 114 Ark. 472, 170 S.W. 582; Brown v. State, 198 Ark. 920, 132 S.W. 2d 15. It must not be induced by promises, either express or implied, by the officer having the accused in custody or by any other person in authority, and, if a confession is made under the influence of hope of mitigation of punishment' excited by those in authority, it is inadmissible. Hardin v. State, 66 Ark. 53, 48 S.W. 904; Brown v. State, supra.
Even though we give full credit to the testimony of the deputy prosecuting attorney who talked with Walter that he made no promise to Walter and that he specifically stated that he had no authority to do so, the conclusion that Walter was justified in feeling that there was an implied promise of leniency is inescapable when we view all the circumstances, including the course of events following his confession. We must hold that the confession was involuntary and inadmissible.
We deem it unnecessary to consider the argument of the appellants regarding severance because we cannot anticipate that the question will arise again or the context in which it might arise, because of our holding as to Walter’s confession. Two other questions raised by appellants will likely arise on retrial. The first is the contention that the testimony of Dr. James Harper Bledsoe about a bullet wound suffered by John was admitted in violation of the physician-patient privilege. The other relates to the admissibility of testimony pertaining to an automobile owned by Freeman.
The victim of the robbery was found slumped in his chair. In his lap there was a .38 caliber pistol that he been fired recently. After finding this situation, Patrolman Paul Hale of the North Little Rock Police Department went to the University Medical Center and arrested John, whom he found lying on an x-ray table. John had been taken to the emergency room there about noon. Lt. Tucker came there about 5:00 P.M. and witnessed the administration of a trace metal test on John. Two black males had been seen between 11:00 and 11:30 A.M. leaving Anderson’s used car lot under circumstances from which it might have been inferred that one of them had been injured. Gunshots had been heard from the lot. Dr. Bledsoe testified that he was the physician at the University Medical Center who examined and treated John there on December 29, 1973 and that any inquiry or examination he made of John was for the purpose of treating and prescribing for him. Over the objections of John’s attorney, Bledsoe was permitted to testify that John had suffered a gunshot wound to his lower abdomen inflicted by a large caliber bullet (larger than .22, perhaps as large as .45), that there was no exit wound, that the bullet was not then removed, because it was too dangerous to the patient to do so at the time, that it should have been removed when John’s condition was more stable, that John was his patient for nine or ten days, and, according to his records, it had not yet been removed.
The physician-patient privilege is incorporated into Ark. Stat. Ann. § 28-607 (Supp. 1973), which provides that no person authorized to practice medicine or surgery shall be compelled to disclose any information acquired from his patient which was necessary to enable him to prescribe as a physician or do any act as a surgeon. The privilege is purely statutory. Wimberly v. State, 217 Ark. 130, 228 S.W. 2d 991; Norton, Privileges, 27 Ark. Law Review 211 (1973). In Ragsdale v. State, 245 Ark. 296, 432 S.W. 2d 11, we held the statute applicable in criminal cases, but there we did not have a situation in which the provisions of a later statute, Ark. Stat. Ann. § 42-501 (Repl. 1964) were applicable. Without having considered the latter statute’s application where the accused was the patient, we have said that the former was not intended to be the means of protecting a criminal from just punishment. Edwards v. State, 244 Ark. 1145, 429 S.W. 2d 92; Wimberly v. State, supra. Even so, the language of Wimberly, where the victim was the patient, rather than the accused, is fully applicable here, where the accused was the patient invoking the privilege. We said: We have no hesitation in holding that, for the policy reasons quoted, if for no other, the privilege stated in Ark. Stat. Ann. § 28-607 (which was, insofar as material here, incorporated in the Revised Statutes of 1838) is qualified by the provisions of Ark. Stat. Ann. § 42-501 — 503 (Repl. 1964), adopted in 1949. See Norton, Privileges, 24 Ark. Law Review 211, 212. But the qualification must be limited to that information required of a physician or surgeon called upon to render first aid treatment. Ark. Stat. Ann. § 42-502 requires that such a physician or surgeon report to the office of the county sheriff or to a regular member of the police force, the name, áge, sex, color, and location of the injured person and the name of the person bringing the patient in for treatment. Here the court permitted the examination of this witness to extend beyond appropriate bounds. Dr. Bledsoe’s description of the wound and its location was not in violation of the privilege, but the statute requiring the report certainly does not call for the surgical treatment prescribed or the fact that the bullet had not been removed. The privilege operates to exclude information obtained for diagnosis and treatment by means other than communications by the patient, diagnosis for treatment or surgery as well as the information on which it is based, treatment prescribed as a result of the information gained, and descriptions of the patient’s condition or the extent of his injuries. See Ragsdale v. State, 245 Ark. 296, 432 S.W. 2d 11; Brotherhood of Railroad Trainmen v. Long, 186 Ark. 320, 53 S.W. 2d 433; National Benevolent Society v. Barker, 155 Ark. 506, 244 S.W. 720; St. Louis, I. M. & So. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786; Brown v. Brown, 181 Ark. 528, 27 S.W. 2d 85; Duff v. Ayers, 156 Ark. 17, 246 S.W. 508; Poinsett Lumber & Mfg. Co. v. Longino, 139 Ark. 69, 213 S.W. 15; Coca-Cola Bottling Co. v. Strather, 192 Ark. 999, 96 S.W. 2d 14. Thus, the doctor’s testimony about the danger of removal of the bullet, the prospect of removal, and the failure to remove it should have been excluded.
... a construction which would serve as a cloak for crime should not be placed upon a statute which as we have said, was enacted “to prevent physicians from disclosing to the world the infirmities of their patients.” The State has a vital interest in the protection of its citizens from acts of violence. It would be unreasonable to say that a physician must report his treatment of a gunshot wound to a peace officer, but that the State cannot call him to testify as to the nature, location and extent of such wounds in a court of law.
This brings us to the very difficult problem relating to the seizure of Freeman’s automobile and the admission of photographs of it taken after seizure. A motorist, whose attention was attracted by commotion at Anderson’s used car lot at the time of the robbery, saw two black males, one of whom was bent over holding his stomach, run from Ander son’s office to an automobile, which was driven away after both had gotten into it. He followed this car for one block. He described it as a gold Buick with white top and black pin stripes running from the door to the back taillight. He said he had never seen a car striped as this one was. He identified photographs that the police had taken of Freeman’s automobile as showing the one he had described, and said that he had seen it on the North Little Rock Police Department’s parking lot between the time of the robbery and the time of trial. This witness said he had been present when it was photographed at the parking lot. Another witness who had been in the car with the motorist also identified the vehicle in the photograph as the one in which he saw three black males fleeing the scene. He described the color of the vehicle as “brownish and white”. Still another motorist, who looked toward the used car lot when he heard two shots, saw the fleeing males get into a gold car a block away. He testified that the photographs showed a vehicle that was the “right color” and that one of the defendants “looked like” one of those he saw fleeing. A pedestrian, who had been about a block away from the lot only saw the rear of the car from a distance but said that one of the photographs looked like the car he saw. A witness, who was in the emergency room at the University of Arkansas Medical Center when John was brought there, identified Freeman as the person who brought him. He said that after giving a clerk there some information Freeman left in a car he identified from the photographs that had been introduced in evidence. Another witness corroborated the testimony and described the vehicle in which Freeman departed as a gold Buick Wildcat.
On January 2, 1974, Lt. Tucker and Sgt. May, having a warrant for the arrest of Freeman, went to 1319 Gaines Street in Little Rock. There Tucker observed a 1969 Buick Wildcat bearing Arkansas license place DLY 571 parked behind the residence at that address. The color of the body of the automobile was gold. It had a white top. It matched the description given by witnesses. Tucker and May saw a negro male and two females get into another automobile in front of this residence and drive away. They followed the vehicle about two blocks. Seeing that the male was Freeman, they stopped the car in which he was riding and arrested him.. After the arrest, the officers, with Freeman in custody, returned to 1319 Gaines Street and observed that the vehicle they had seen at the rear of the premises remained there. Lt. Tucker thought the vehicle should be impounded. Tucker advised Freeman that they were going to seize the car for identification purposes. Tucker prepared to call a wrecker to tow the vehicle away, but after being told that he could either let one of the officers drive the car or he would be “out” the towing charge, Freeman stated that he did not want to pay for a wrecker and that one of the officers could drive the vehicle to North Little Rock Police Headquarters. It was taken there by Sgt. Hightower. Photographs of the vehicle, later introduced in evidence, were then taken. Thereafter, it was released to Freeman’s sister at his request.
Appellant’s motion to suppress these photographs was denied. The state endeavors to justify the seizure as incident to his arrest. But we cannot agree that this seizure falls within the ambit of seizures permissible as such. It has long been recognized that different standards for determining reasonableness of searches are applied where automobiles rather than dwelling houses, places of business or other structures are involved, because of the mobility of vehicles. See Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1924). No reason appears why the guidelines for testing reasonableness of seizure of automobiles should be different than those followed in regard to searching them. See generally Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, rehearing denied 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1969).
The validity of a warrantless search, and hence a seizure, is, first dependent upon the existence of probable cause, unless it is incident to a lawful arrest. It cannot seriously be urged that the seizure of Freeman’s automobile was incident to his arrest two blocks away from where he was first seen and where the officers had earlier observed his car. In order to justify a seizure on this ground, the vehicle must have been in the immediate vicinity of the arrest, which has been confined to the area within the immediate control of the person arrested, i.e., the area from which he might gain possession of a weapon or other instrument which might be useful in effec ting an escape or destructible evidence. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), rehearing denied 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1970). See also, Steel v. State, 248 Ark. 159, 450 S.W. 2d 545; Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970); James v. Louisiana, 382 U.S. 36, 86 S. Ct. 151, 15 L. Ed. 2d 30 (1965).
We do not think it can be said that there was not probable cause for the seizure of the automobile. This alone, however, cannot justify a warrantless seizure, not incident to arrest. An additional requirement needed to justify the seizure without first securing a warrant under the “automobile exception” is the existence of exigent circumstances. Coolidge v. New Hampshire, supra; Chambers v. Maroney, supra. The state bore the burden of showing the existence of such exigencies. Coolidge v. New Hampshire, supra; Vale v. Louisiana, supra, it seems that in order to do so in this case, it must have been shown that it was not practicable under the existing circumstances to secure a warrant. Coolidge v. New Hampshire, supra; Vale v. Louisiana, supra. The vehicle was not stopped or abandoned on the open highway. It was not taken into police custody to safeguard the owner’s property or to protect the public safety. The possible connection of the vehicle with the Anderson murder was known to the officers when they initially saw it at the Gaines Street address. It was not at the time being used for any illegal purpose and Freeman, if he was trying to escape and avoid arrest, was not using it for that purpose. There was no way that he could have had access to the car after he was arrested. Lt. Tucker and Sgt. May participated in the arrest and at least two other officers, one of whom drove the vehicle to North Little Rock, were en route. There was no indication that there was any danger that the other occupants of the vehicle from which Freeman was taken might remove the vehicle from the premises before a warrant for its seizure could be obtained and executed, even if we should assume that these females were his confederates. If that danger did exist, however, no reason appears why the two officers other than Tucker and May could not have maintained a guard sufficient to prevent the removal of this evidence, or why additional officers could not have been summoned to lend assistance in this respect. The precepts of Coolidge prevent our holding that exigent circumstances justified the seizure. See also, Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663 (1947); Vale v. Louisiana, supra.
Coolidge likewise bars our sustention of the seizure under the “plain view” doctrine. Because of the fact that in most cases any evidence seized by the police is in plain view at the moment of seizure, the Coolidge court stated the problem as identification of the circumstances in which plain view has legal significance rather than being the normal concomitant of any search, legal or illegal. The cases upholding searches and seizures under the “plain view” doctrine have one factor in common, i.e., the police officer had a prior justification for an intrusion in the course of which he came upon a piece of evidence incriminating the accused. The “plain view” exception cannot justify police seizure where there is an absence of exigent circumstances which effectively nullify the opportunity to obtain a warrant in advance, where a trespass is necessary to effect the seizure and where the seized object is not contraband, stolen goods or dangerous in itself. In this case the authorities had ample time to obtain a warrant and the circumstances did not necessitate immediate seizure. On the present record, we cannot say that the photographs of the car were not an exploitation of an illegal seizure. See Durham v. State, 251 Ark. 164, 471 S.W. 2d 527; Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). There is a possibility that we might have considered this as harmless error, if it were not necessary to reverse the case on other grounds. Still, it seems where error is of constitutional proportions, it is not harmless unless the evidence supporting a conviction is otherwise overwhelming. Consequently, we could not, on this appeal, since a retrial is necessary, treat the admission of this evidence as harmless error. We do not mean to indicate, however, that testimony of the officers about their observation of the vehicle from the street and its description as then observed would not have been admissible under the “plain view” doctrine. See United States v. Corbett, 518 F. 2d 113 (8 Cir., 1975).
Of course, it cannot be argued seriously that Freeman’s agreement that the police officer could drive the car to the police station constituted consent to its seizure under the circumstances. The only alternative was that it would be towed there at his expense.
The judgment is reversed and the cause remanded for a new trial.
Roy, J., not participating.
In order to simplify identification of the parties, we will hereafter refer to Walter Bowden as Walter, John Arthur Bowden as John and Freddie Dean Freeman as Freeman. | [
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Elsijane T. Roy, Justice.
Appellee, Research-Cottrell, Inc., under a subcontract agreement with the Bechtel Corporation, contractor for the Arkansas Nuclear 1 Unit of Arkansas Power & Light Company located in Russellville, Arkansas, was engaged to design, furnish and install a natural draft cooling tower for Arkansas Power & Light Company at the nuclear generating power station. After an audit, appellant served appellee with a notice of tax assessment which was upheld in an administrative hearing. Appellee brought a petition for declaratory judgment in the Chancery Court of Pope County, Arkansas. After trial the court entered judgment for the appellee declaring the notices of assessment to have been wrongfully issued, and that appellee was entitled to a use tax exemption.
Appellee first alleged that an exemption is applicable under Ark. Stat. Ann. § 84-3106 (D)(2)(d), which statute gives an exemption for machinery and equipment required by state law or regulations to be installed and utilized by manufacturing facilities to prevent or rfeduce air and/or water pollution. It was under this theory that the court found for appellee. The other theory advanced by appellee is that a specific exemption applies under Ark. Stat. Ann. § 84-3106 (D)(2), and that the cooling tower constructed was machinery and equipment used directly in manufacturing.
The appellant contends that there is no exemption under either theory, and that under Ark. Stat. Ann. § 84-3129 and § 84-3130 appellee is a contractor and therefore a consumer of the items purchased, and consequently responsible for paying the use tax on such purchases. The appellant also contends that since appellee is a contractor, that any exemption which could possibly be applied to Arkansas Power & Light Company would not be imputed to the contractor. The appellant’s last contention is that certain exemptions were granted by the legislature to utilities by Act 439 of 1969, which was later modified by Act 222 of 1971, presently codified as Ark. Stat. Ann. § 84-31.05.1 (H). The net effect of appellant’s last contention is that utilities are afforded unique exemption status in the use tax laws, and are not characterized as manufacturers but as utilities, and therefore, even if Arkansas Power & Light Company had an exemption, it would not be under the manufacturing exemption of Ark. Stat. Ann. § 84-3106 (D)(2), but would be limited to Ark. Stat. Ann. § 84-3105.1 (H).
Appellant brings this appeal from the adverse decision of the Pope County Chancery Court.
For reversal appellant contends the chancellor erred in finding that appellee Research-Cottrell, Inc., a contractor, is entitled to the benefits of the use tax exemption found in Ark. Stat. Ann. § 84-3106 (D)(2)(d).
Under appellee’s first contention we find the issue to be whether appellee Research-Cottrell, in performing its contract with Bechtel Corporation (the general contractor) to install a cooling tower at the nuclear generating facility of Arkansas Power & Light Company, is entitled to the exemptions to the use tax found in the above cited statute.
Under well established law, appellee, Research-Cottrell, Inc., has the burden of clearly proving any right to an exemption. C.J.C. Corporation v. Cheney, Commissioner, 239 Ark. 541, 390 S.W. 2d 437 (1965).
The basic use tax exemptions were enacted in Act 487 of the 1949 Acts of Arkansas, (Ark. Stat. Ann. § 84-3106). These basic use tax exemptions have been amended several times, including Act 5 of the 1968 Acts of Arkansas (First Ex. Sess.) which is now codified as Ark. Stat. Ann. § 84-3106 (D)(2)(d) (1973 Cum. Supp.). The exact language of the statute is as follows:
“There are hereby specifically exempted from the taxes levied in this Act:
“(D)(2)(d) Machinery and equipment required by State law or regulations to be installed and utilized by manufacturing or processing plants or facilities in this State to prevent or reduce air and/or water pollution or contamination which might otherwise result from the operation of such plant or facility.”
This part of the statute was passed because the legislature recognized the increased anxiety of concerned citizens about damage to the environment caused by the disposal of industrial waste and thermal discharge. About the same time federal and state governments began pollution abatement efforts which took several forms. One method was to grant subsidies in the form of tax incentives. By the end of 1969 a number of states had amended their tax laws to offer one or another form of incentive as a mode of approach to the pollution problem.
Arkansas passed the cited exemption to the use tax laws in an effort to encourage industries to make substantial capital investments in order to prevent and reduce air and water pollution and to protect the overall environment. This was clearly the purpose of the tax exemption.
Appellee, to qualify for the pollution use tax exemption, must fit precisely within the statutory definition.
Appellant takes the position that a cooling tower is not machinery and equipment but is only “a massive cement structure.” Such a characterization of the cooling tower does not preclude its being machinery or equipment.
Appellant also draws a comparison between the cooling structure at issue and a chimney, asserting that an ordinary person would share appellant’s reluctance to characterize this tower as a machine. Appellee, on the other hand, has made available the testimony of the mechanical engineer who was responsible for the design and construction of the cooling tower and who found no difficulty in denominating this tower a machine. He stated that natural draft cooling towers are evaporative cooling machines, and probably the largest pollution control mechanisms in use today. In this instance, the cooling machine serves to prevent the hot water, which is a necessary by-product to electrical generation, from damaging the waterways (in this instance Dardanelle Reservoir). The testimony was that fish and plant life would be significantly damaged in the Reservoir without the operation of the cooling tower.
The testimony of one of appellee’s engineers on this issue follows:
Q. Could you briefly for us, in your own words, just describe what is an evaporative cooling tower?
A. An evaporative cooling tower is really quite a simple machine that uses the laws of nature to do its work for it. It consists of a device which raises water to some elevation, allows it to fall back to the ground thereby engaging with air which is moving in the other direction and allowing the transfer of energy from the water to the air and heat in the form of energy is being transferred.
* * *
Q. All right, would you describe this cooling tower as a pollution control device, Mr. Haggerty?
A. Yes, it certainly is. Its function is to prevent the discharge of the very high quantities of heat into the local body of water, which would result in thermal pollution of that body of water. So its use, therefore, is a pollution control device designed to prevent thermal pollution.
Q. Also would you describe the cooling tower, not only as a pollution control device, but as a machine as you understand the word?
A. Yes, it’s a machine in that it is probably the largest single system cooling device of its kind. Largest type of machine ever made in fact.
In Blankenship v. W. E. Cox & Sons, 204 Ark. 427, 162 S.W. 2d 918 (1942), we relied upon the Webster International Dictionary definition of the word “machine” as being “any device consisting of two or more resistant, relatively con strained parts, which, by a certain pre-determined intermotion, may serve to transmit and modify force and motion so as to produce some given effect or to do some desired kind of work ...” We additionally pointed out that “a crowbar abutting against a fulcrum” and “a pair of pliers in use” would fall within any “strict definition” of the word “machine.” Later in Ben Pearson, Inc. v. The John Rust Co., 223 Ark. 697, 168 S.W. 2d 893 (1954), we incorporated the definition found in Blankenship, supra, and added an extract from Corning v. Burden, 56 U.S. (15 How.) 252, 14 L. Ed. 683, to the effect that “the term machine includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result.” (Emphasis supplied.) In the case at bar, even though the principle involved in recirculating the water for cooling purposes lacks the complexity customarily associated with a machine, there is still present the dynamics of elevating (by mechanical pumps) the heated water some 447 feet and the subsequent interaction of this heated water with asbestos baffles to aid in dissipating the heat as the water descends. This interaction comports with the Blankenship and Ben Pearson, supra, definitions of a machine in that the internal components of the cooling tower comprise “two or more resistant, relatively constrained parts” which “produce some given effect or do some desired kind of work.”
The second part of the pollution control use tax exemption which appellee must come within is that the natural draft cooling tower must be required by state law or regulations to be installed to prevent or reduce air and/or water pollution which might otherwise result from the operation of such plant or facility.
Appellee’s Exhibit No. 22 was the permit issued by the Arkansas Pollution Control Commission to Arkansas Power & Light Company. This permit is required by Ark. Stat. Ann. § 82-1908 (2). The statute states that it is unlawful for any person to discharge any effluent into the waters of the state without having first applied for and obtained a disposal permit from the Commission.
Appellee’s Exhibit No. 23 is a letter from the attorney for the State Department of Pollution Control and Ecology. The letter states inter alia:
“In summary, there is no question that the cooling tower was a required pollution control system under the Arkansas Water and Air Pollution Control Act Regulation No. 2, and the terms of the Commission permit. Absent the cooling tower, thermal pollution of the Dardanelle Basin would inevitably result from the combined discharges of cooling water by the two nuclear units.”
No oral testimony nor documentary evidence was offered by the Department of Finance and Administration to controvert the fact that the cooling tower was required by state law.
During the trial Mr. Dennis Haggerty, engineer of appellee, testified that the Arkansas Power & Light Station at Russellville is really an energy processing plant. He explained how the manufacture of electricity can be traced just as one can trace the output of a plant that manufactures steel or processes food. Like any other manufacturing facility, a power processing plant converts raw materials into a salable product.
In addition to the testimony which indicated that the power plant does manufacture electricity, there is also Arkansas judicial authority for this position. In Morley, Commissioner of Revenues v. Brown and Root, Inc., 219 Ark. 82, 239 S.W. 2d 1012 (1951), we held that personal tangible property purchased by contractors engaged in construction of a dam used in part for “manufacturing” of electricity was exempt from the use tax to the extent that property went into the construction of the dam. We specifically characterized the generating of electrical power as a manufacturing process in Morley, supra.
Appellant argues that exemptions for utilities are restricted to Ark. Stat. Ann. § 84-3105.1 (H) (Act 439 of 1969 as amended by Act 222 of 1971). We find that Act 222 of 1971 removes many of the use tax exemptions which were formerly granted to public utilities, but said act does not indicate that it is exclusive and that there could not concurrently exist an exemption for pollution control equipment. For appellant to argue that the pollution control exemption applies only to some types of manufacturers and not to others is not rational for it would be tantamount to saying that the Arkansas legislature is encouraging some industries to control the environmental pollution problem while discouraging other industries from attempting to do so. It is apparent to this Court that Section (D)(2)(d) of Act 5 of 1968 was intended to grant tax incentives for pollution equipment to any industry which has the capability of polluting the air or water in Arkansas.
Appellant contends further that even if the exemption were available to Arkansas Power & Light Company, it is not available to appellee Research-Cottrell as appellee is a contractor and as such must pay the use tax despite exemptions available to owners. Appellant relies upon Act 125 of 1965 Acts of Arkansas (Ark. Stat. Ann. § 84-3129, et seq.) which levied a 3% tax on all tangible personal property purchased by contractors to be used in the performance of contracts within the state. It is important to note that Section 6 of Act 125 of 1965 states:
“The provisions of this Act shall be cumulative to the provisions of Act 487 of 1949 (As Amended).”
Act 487 of 1949 is the basic use tax exemption statute and one of several amendments to it was Act 5 of 1968 previously referred to which included the “pollution” exemption under consideration here. Ark. Stat. Ann. § 84-3106 is Act 487 of 1949 along with the amendments which have been adopted since then. This issue was considered in Bryan Leary, Comm. of Revenues v. Wolfe, 242 Ark. 715, 416 S.W. 2d 266 (1967). In Wolfe, the Arkansas Commissioner of Revenues sought to assess the use tax against an oil and gas drilling contractor headquartered in Oklahoma on machinery and equipment used in Arkansas operations. The specific exemption of the use tax law included manufacturing and processing machinery, materials and supplies used directly in the mining and production of natural resources. The chancellor found that the contractors were entitled to claim the use tax exemption and held for the taxpayer. On appeal, we affirmed, stating:
“Had the intent been to repeal any provision of the law then existing, the legislature was free to so recite in Act 125.”
Thus in Wolfe we held that the exemptions afforded the taxpayer by Act 487 of 1969 (the basic use tax exemptions) were not repealed by Act 125 of 1965.
The plain and unambiguous wording of the exemption herein reflects that it was based upon the nature of the transaction and not the identity of the taxpayer. It is not an exemption granted only to manufacturers or processors but machinery and equipment “installed and utilized by manufacturing or processing plants or facilities in this State” .... are specifically exempted from the tax.
To hold the exemption did not apply to contractors would defeat the purpose of the Act which was designed to encourage the construction and installation of anti-pollution machinery and equipment. In very few instances would the manufacturer undertake construction and/or installation of the magnitude involved herein. In the regular course of business the manufacturing plant owner would in all probability contract with a qualified contractor to do the construction work.
Accordingly, we agree with the learned trial court in its holding that:
“1. The design, furnishing and installation of a natural draft cooling tower by plaintiff under its subcontract with Bechtel Corporation, the general contractor for Arkansas Nuclear 1 of Arkansas Power & Light Company, comes within the specific exemption of Ark. Stats. § 84-3106 (D)(2) of the Arkansas Compensating Use Tax being machinery and equipment required by State law or regulations to be installed and utilized by manufacturing or processing plants or facilities in this State to prevent water pollution or contamination which might otherwise result from the operation of such plant or facility.
“2. Plaintiff, as a contractor, is entitled to the benefits of the specific exemption of Ark. Stats. § 84-3106 (D)(2)(d), and is entitled to relief from the Arkansas Compensating Use Tax in this transaction.
“3. The notice of assessment by defendant against plaintiff was wrongfully issued and the specific exemption from the Arkansas Compensating Use Tax set forth in Ark. Stats. § 84-3106 (D)(2)(d) exempts plaintiff from the Arkansas Compensating Use Tax.”
Having found that appellee is entitled to the exemption provided in the pertinent section of the anti-pollution statute we do not reach consideration of its contention that the cooling tower was machinery and equipment used directly in manufacturing.
Judgment of the trial court is affirmed in all respects.
George Rose Smith, Fogleman and Jones, JJ., dissent. | [
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George Rose Smith, Justice.
The jury found the appellant Rogers guilty of having delivered a controlled substance and fixed his punishment at a $4,000 fine and imprisonment for eight years. The State’s proof showed that on February 5, 1974, Rogers sold a pound of marihuana to an undercover agent, Officer Walters, for $135. Rogers’ present attorney, who did not represent him in the trial court, argues three points for reversal.
First, the statutory definition of marihuana contains an exception excluding certain parts of the plant, such as the mature stalks. Ark. Stat. Ann. § 82-2601 (n) (Supp. 1973). It is contended that Rogers was entitled to a directed verdict of not guilty, because the State failed to prove that the marihuana assertedly sold to Officer Walters did not consist solely of the excepted parts of the plant. The statute itself — being a Uniform Act — answers that contention by expressly providing that it is not necessary for the State to negate any exemption or exception, in the information or at trial, the burden of proof being upon the person claiming the exemption or exception. Section 82-2630; Smith v. United States, 269 F. 2d 217 (D.C. Cir. 1959), cert. den. 361 U.S. 865 (1959); Garner v. State, 258 Ark. 321, 524 S.W. 2d 223, also decided today.
Secondly, it is insisted that the court erred in allowing the package of marihuana to be introduced in evidence, because a positive chain of possession was not established. We find no error. Officer Walters testified that after buying the marihuana on February 5 he took it to the Little Rock police headquarters and stored it in the narcotics safe. Before storing it he put his initials and the date on a piece of paper. He then put that piece of paper and the marihuana in a plastic bag, which he sealed with a heat-sealing machine. He explained that the machine “wasn’t working too proper at that time and I may have added a staple to it.” He also attached police department property tag No. 1101 to the bag, writing his initials on the tag. Two days later Officer Bullerwell took the package, bearing tag No. 1101, from the safe and delivered it to Don Wise, a chemist at the State Department of Health. Wise, after testing the substance and finding it to be marihuana, put the package in a vault, where it remained until he brought it to court on the day of trial. Wise identified the package as the one he received on February 7. Walters, Bullerwell, and Wise all testified.
The appellant, in insisting that the package was not admissible, relies upon several asserted uncertainties in the State’s testimony. Although Officer Walters, testifying more than six months after he sealed the bag, said that he “may have added a staple” to the heat seal, there were no staple marks on the bag. The slip of paper described by Officer Walters was not in the bag when it was offered in evidence. Upon that point the chemist, Wise, testified:
Q. Were there any markings inside the plastic bag?
A. Í made note of no markings. I do not know whether
there was or not. I don’t recall.
Officer Walters identified his handwriting on tag No. 1101, but it was partly in ink and partly in pencil, because “the pen went bad.” When the officer was asked on cross-examination if he was identifying the tag, his answer was: “Yes, sir. I couldn’t swear that this is — but it was — ” At that point the witness was interrupted by defense counsel and did not finish whatever he started to say.
Despite some uncertainties in the State’s testimony, the trial court properly admitted the package into evidence. Officer Walters testified that he put tag No. 1101 on the package, that he initialed it, and that the initialed tag was on the package when it was offered in evidence. The intervening chain of custody was established. Thus there was a prima facie showing of admissibility. The appellant relies upon Fight v. State, 254 Ark. 927, 497 S.W. 2d 262 (1973), but in that case there were somewhat similar deficiencies in the State’s proof. In upholding the trial court’s action in allowing the introduction of the evidence we said: “The court held the evidence admissible, but told the members of the jury .that it was up to them to decide whether Officer Langston eventually placed in the mails the same substance that was given to him.” In the case at bar the minor uncertainties in the proof were matters to be argued by counsel and to be considered by the jury, but they did not render the package inadmissible as a matter of law.
Finally, it is insisted that the trial judge was wrong in giving the following instruction at the State’s request:
The defendant is charged with the offense of delivering a controlled substance, to-wit: Marijuana. Act 590 of 1971, as amended, makes it unlawful for any person to deliver Marijuana, a controlled substance, as defined within the Act.
“Deliver” is defined as follows: “Deliver” or “delivery” means actual, constructive or attempted transfer from one person to another of a controlled substance in exchange for money or anything of value, whether or not there is an agency relationship.
Defense counsel, however, made only a general objection to the instruction, which is insufficient to preserve any point for appellate review. Rule 13, Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann., Vol. 3A, Supp. 1973, p. 126.
Despite the absence of any objection it is argued, upon the authority of United States v. Clark, 475 F. 2d 240 (2d Cir. 1973), that a defendant’s constitutional right to a fair and impartial trial requires the judge to give correct instructions upon his own motion, regardless of the action of counsel. The Clark case, however, is readily distinguishable from this one, owing to substantial differences between the federal procedure and our state procedure.
In Clark the trial judge extemporaneously gave oral instructions that were in some respects incomplete, incomprehensible, and wrong. The Court of Appeals, after reversing the judgment upon another point, held that the instructions were so deficient and defective as to amount to “plain error . . . affecting substantial rights” within the meaning of Rule 52(b) of the Federal Rules of Criminal Practice. That rule provides that plain errors or defects affecting substantial rights may be noticed by an appellate court although they were not brought to the attention of the trial court. We have no such rule in Arkansas. On the contrary, our Uniform Rule 13, supra, requires that objections to instructions be specific, to the end that new trials will not be required for errors that might have been corrected had they been brought to the attention of the trial court.
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Frank Holt, Justice.
Appellant’s manager caused appellee to be arrested for larceny by a bailee pursuant to Ark. Stat. Ann. § 41-3929 (Repl. 1964). The prosecutor later dismissed the charge. Appellee thereafter brought suit for malicious prosecution. A jury awarded appellee $1,500 compensatory and $1 punitive damages. Appellant was awarded $1,225 on its cross-complaint against appellee for damages to its automobile during the bailment. Appellant first asserts for reversal that the trial court erred in denying its motion for a directed verdict and argues there was insufficient evidence that the criminal action was instituted without probable cause.
In determining the sufficiency of the evidence on appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and affirm if there is any substantial evidence to support the finding of the jury. Green v. Harrington, 253 Ark. 496, 487 S.W.2d 612 (1972). There we said that upon appellate review it must appear “there is no reasonable probability that the incident occurred as found” by the factfinder. Furthermore, it is well established that upon appeal we consider only the evidence of the appellee or that portion of all the evidence which is most favorable to him. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W.2d 689 (1935); and Washington Natl. Ins. v. Meeks, 252 Ark. 1178, 482 S.W.2d 618 (1972).
The appellee was employed at a place of business near that of the appellant. The appellee became acquainted with appellant’s manager and expressed an interest in buying one of their rental cars. Appellee’s version of the bailment, which was contradicted by appellant, was that appellant permitted him, by a verbal agreement, to have the car on a Friday afternoon with the understanding that he would return or purchase the car on the following Monday. Appellee expressed a desire to show it to his wife, his insurance adjuster to determine the insurance rates, and have a mechanic inspect the brakes and front end alignment. He was told there was no restriction as to the mileage he could put on the car and neither was he limited to keeping it in Little Rock. It was appellee’s understanding that he “could drive it wherever [he] pleased”. He drove the car to Batesville where he spent Friday night and showed the car to his and his wife’s families. Saturday morning they went fishing. That evening they attended a show and then after putting the children to bed, he and his wife went “riding around in the car.” He accidentally lodged the car on an asphalt ramp at a dam site causing the damages. He was unable to locate appellant’s manager on Sunday and drove the car back to Little Rock. On Monday morning (not having seen his insurance agent or mechanic) he called appellant’s manager and advised him about the damaged car. As requested, appellee returned the car.
Appellant’s manager denied that the bailment existed longer than Friday or one day. He and appellee discussed settlement of the damages to the car. Appellee said that he would “try to work something out with him” and “give me a little time.” Several days later, appellee moved from Little Rock to Memphis to other employment. A few days later the appellant contacted the prosecuting attorney and had a warrant issued for the appellee upon a charge of larceny by a bailee. Appellee testified that appellant’s manager knew that he was in the process of moving. The manager did not secure a written estimate of the cost of the damages to the car until after the criminal action had been dismissed in criminal court. He acknowledged that he could have filed a civil suit. However, he thought the appellee was “judgment proof.” Also that he considered the appellee had “broken the law” and “should be punished.”
In an action for malicious prosecution, the burden is on the plaintiff to show that the defendant acted maliciously and without probable cause. Malvern Brick and Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Only when the facts relied upon as constituting probable cause are undisputed, then the question becomes one of law and should not be submitted to the jury. Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68 (1935); and Whipple v. Gorsuch, 82 Ark. 252, 101 S.W. 735 (1907). However, appellant recognizes that where a factual dispute exists “it is generally for the jury to determine the truth and whether a justification is established” for prosecution.
The crux of § 41-3929 is not the existence of an intent to convert the property to the use of the bailee but the use of the property contrary to the agreement. Sullivant v. Pennsylvania Fire Ins. Co., 223 Ark. 721, 268 S.W.2d 372 (1954). In the case at bar, the conditions of the verbal bailment are in dispute. As indicated, the appellee took the car to show to his insurance agent and mechanic and “try the automobile out and show it to my wife.” It is true that he did not confer with his insurance agent or mechanic about the car. However, there was no particular time agreed upon as to when appellee would return the car on Monday. The car, having been damaged on Saturday, was returned, as requested, Monday morning. According to appellee, appellant did not limit the mileage and he could drive the car wherever he pleased. In the circumstances, the question as to whether appellee had deviated from the agreement was properly submitted to the jury.
Appellant next argues that the court erred in refusing to direct a verdict on the ground that appellant acted upon the advice of counsel in prosecuting this case. Appellant recognizes our well established rule that matters raised for the first time on appeal will not be considered. Even if we agree with the appellant that its motion was sufficiently presented to the trial court, we cannot agree with its contention. This is so because, as appellant recognizes, a full and complete disclosure of the facts must be made. Hall v. Adams, 128 Ark. 116, 193 S.W. 520 (1917). As indicated, there was a factual issue between appellant’s and appellee’s version of the bailment.
Appellant finally asserts that appellee failed to prove that appellant acted with malice, which is a necessary element in a malicious prosecution cause of action. We have held that “. . . . malice may be inferred when there is lack of probable cause, even though there was no express showing of malice.” Malvern Brick and Tile Co. v. Hill, supra. Furthermore, as previously stated, in determining the sufficiency of the evidence, we must view the evidence in the light most favorable to appellee. Appellee testified that when appellant’s manager learned about the damaged car, the manager expressed a fear of losing his job. Then he attempted to get appellee to sign a postdated rental agreement in order to have appellant’s insurer pay for the damage. According to appellee, appellant’s manager knew that appellee was moving to Memphis and he contacted appellee only once before appellee moved. During that last conversation in Little Rock, the parties talked about the damage to the car and appellant again asked appellee to sign the postdated rental agreement. When asked why the criminal action was instituted, appellant’s manager answered “[B]ecause he had broken the law and as far as I could see he should be punished.” Appellant’s manager did not think that it was “in the best interest of the company” to file a civil suit because he thought “the man was judgment proof.” Appellee testified that appellant’s manager told him the charges would be dismissed if appellee would pay the damages. Certainly, there is substantial evidence from which the jury could find the necessary element of malice.
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Lyle Brown, Justice.
The plaintiff and intervenors, E. F. Dunn and the trustees of the Kinkead estate sought and were granted a private easement for the uninterrupted use of a road crossing defendant’s property. The road then ran north across plaintiff’s property, thence north across the property of the Kinkead (trustee) estate. Appellant Eugene Pfeifer III contends the appellees’ use of the property was at all times permissive and did not ripen into an easement.
The essential facts are substantially undisputed. The setting of the farm lands to which access is involved is along the Arkansas River near the rural community of Natural Steps. The latter community is on high ground and a number of farmers cultivating the lands adjacent to the river live at Natural Steps.
There is an all-weather road running north along the river bank and serving from south to north, the Pfeifer acreage, then the Dunn acreage, then the Kinkead acreage. The road has an interesting history. A county road and bridge which for years had served the farms washed into the river. In 1963 the United States Engineers built an all-weather road along the river bank to gain access to a bank stabilization program. That road adjoins, in fact runs through the edges of, all the litigants’ properties. The government moved out in 1964. Dunn, the Kinkeads and some six other farmers on the north end of the road continued to use the road as farm access. Immediately the farmers were faced with a multitude of problems. The new road, the stabilized banks and other improvements attracted fishermen, picnickers, vandals and party groups. Serious vandalism was committed to farm equipment left in the fields overnight. To combat the undesirables, E. L. Kinkead, on the road just south of the Olive Moreland property, erected a gate which was locked. Keys were furnished all the land owners and their tenants. That was in 1964. Not many months thereafter the gate was moved approximately 100 feet north along the road and erected on the land of Olive Moreland, to which action Miss Moreland had no objection. A culvert installed by the government contractors under the road where it was crossed by Mill Bayou was inadequate and a wider one was placed and maintained by Pulaski County. The entire road has since its inception been maintained by Pulaski County with the knowledge of all affected landowners. The maintenance foreman of Pulaski County was furnished with a key to the gate.
In the spring of 1973, appellant Eugene Pfeifer III, became the successor in title to Miss Olive Moreland relative to the land upon which the gate was located. Mr. Pfeifer, on June 25, 1973, changed the lock on the gate for which appellee and others using the road possessed a key. Of course the effect of the changing of the lock was to preclude ingress and egress by parties other than Mr. Pfeifer.
On July 26, 1973, appellee E. F. Dunn instituted suit, praying that appellant Pfeifer be ordered to open and leave open the above mentioned gate and permit the appellee, his tenants and employees free and uninterrupted use of the road across the land of appellant. The trustees of thé Kinkead estate did on the same day file an intervention praying for practically the same relief as sought by appellee Dunn. At a preliminary hearing the court granted a temporary injunction enjoining Pfeifer from denying appellees the use of the road. Pfeifer was ordered to make available keys to the gate to appellees and all other persons and their agents and employees who had previously utilized the gate and roadway and ordered appellant to permit those individuals free and uninterrupted use of the roadway. On December 14, 1973, at a hearing on the merits, the court decreed that the temporary injunction should be made permanent.
In upholding the final order of the court, we repeat, in order to avoid any misunderstanding of our ruling, the court’s finding:
The temporary order of this court entered on July 31, 1973, shall be and the same hereby is made permanent and the defendant be and he hereby is ordered to make available to the plaintiff and the intervenors keys to any lock he has placed or will place on the gate at the southern boundary of the servient estate, and is further ordered to permit free and uninterrupted use of the roadway across the servient estate as has been made of said roadway in the past, by the plaintiff, intervenors, their agents, and employees, and the beneficiaries of Ewing L. Kinkead Trust No. 1, and Ewing L. Kinkead Trust No. 2.
We have inserted the finding of the court in order to make certain of no misunderstanding. In upholding the trial court we are not deciding that the public has acquired an easement across said road; therefore the substantial body of our law applying to public easements has no application as respects the case at hand.
There are several factors which, when combined, lead us to the conclusion that the court acted properly in sustaining the private easement. First, although it might be said there was an element of permissiveness in Miss Moreland’s allowing the construction of the gate near the entrance to her land, it was a common gate for a common purpose, namely, to protect against vandalism.
In the case of Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281 (1954), there was no consideration for the use of the passageway. Consequently, the use of the passageway originated strictly as a permissive right. We point up that distinction in Fullenwider because we think it is important to our holding. As just pointed out, it was for the common good of all the landowners to have a common gate to protect against vandalism. Also, it can be said that the new road served as a substitute for a county road which had been washed into the river. The fact that the road had been kept in good condition and the maintenance performed by county employees should have placed any doubtful property owner upon inquiry. All that has been done, including the erection of the gate, the distribution of keys, and the upkeep of the road, would serve to notify any interested person that the common property owners were recognizing a right to a common road, being a private easement.
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PER Curiam.
Arguing that there is no timely notice of appeal m. this case, appellees, Pro Transportation, Inc. and Jeff Esry, have filed a Motion to Dismiss Appeal. For the reasons stated below, we grant appellees’ motion with regard to the May 12, 2000, notice of appeal from the order awarding attorney’s fees. However, we deny appellees’ motion with regard to the March 16, 2000, notice of appeal from the order granting summary judgment.
On February 24, 2000, the Pulaski County Circuit Court granted summary judgment in favor of the appellees in this matter, dismissing all of appellant’s claims against the appellees and ordering the appellees to submit an affidavit of attorney’s fees. Appellant filed its notice of appeal from this order on March 16, 2000, challenging the award of summary judgment and other procedural orders. The trial court then entered an order granting attorney’s fees to the appellees on April 5, 2000. Appellant filed its amended notice of appeal on May 12, 2000, adding the order granting attorney’s fees to the orders from which appeal is taken.
The appellees argue that this appeal must be dismissed for failure to file a timely appeal from a final order of the trial court. Essentially, the appellees argue that appellant’s March 16 notice of appeal did not arise from a final order because the trial court reserved the issue of attorney’s fees in its order granting summary judgment. Therefore, according to appellees, the May 12 amended notice of appeal is controlling but untimely, because it was filed more than thirty days following the entry of the trial court’s final order on April 5 and the appeal must be dismissed. We disagree.
On March 16, 2000, appellant filed a notice of appeal from the trial court’s order granting summary judgment to the appellees. The order granting summary judgment awarded attorney’s fees to the appellees but did not set an amount. Rather, the trial court ordered the appellees to submit an affidavit of attorney’s fees along with a proposed precedent on the issue of attorney’s fees to the court within seven days. The appellees now argue that because of this provision, the order granting summary judgment was not final.
Appeal may be taken from a final judgment or decree entered by the trial court. Ark. R. App. P. — Civ. 2. For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy; thus, the order must put the trial court’s directive into execution, ending the litigation, or a separable branch of it. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). Where the order appealed from reflects that further proceedings are pending, which do not involve merely collateral matters, the order is not final. Id. The finality of an order is a jurisdictional issue which this court has a duty to address. Id.
Matters which are collateral or supplemental to the trial court’s judgment are left within the trial court’s jurisdiction even though an appeal has been docketed. Alexander v. First Nat’l Bank of Fort Smith, 278 Ark. 406, 646 S.W.2d 684 (1983). We have consistently held that the award of attorney’s fees is a collateral matter. Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997); Marsh & McLennan of Ark. v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995); Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991). The February 24 order concluded the rights of the parties to the subject matter at issue. The only issue which remained pending was the amount of the attorney’s fees to be awarded to the appellees. Consequently, the February 24 order was final for purposes of appeal, even though the amount of the attorney’s fees had not yet been set. Because the February 24 order was final, the notice of appeal from that order filed on March 16, 2000, was timely.
The appellees next argue that the amended notice of appeal filed on May 12, 2000, from the April 5 order granting attorney’s fees was not timely filed, and, therefore, appellant’s appeal from that order must be dismissed pursuant to Arkansas R. App. P. 4(a), which provides in pertinent part that “. . .a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. ...” The failure to file a timely notice of appeal deprives the appellate court of jurisdiction. Hawkins v. State Farm Fire & Cas. Co., 302 Ark. 582, 792 S.W.2d 307 (1990). Clearly, appellant’s amended notice of appeal was filed more than thirty days from entry of the trial court’s order on attorney’s fees. However, on June 2, 2000, appellant filed a motion to extend time for filing notice of appeal pursuant to Ark. R. App. P. — Civ. 4(b)(3):
Upon a showing of failure to receive notice of the judgment, decree or order from which appeal is sought and a determination that no party would be prejudiced, the trial court may, upon motion filed within 180 days of entry of the judgment, decree, or order, extend the time for filing the notice of appeal for a period of fourteen (14) days from the date of entry of the extension order.
Appellant alleged within its motion that it had no knowledge that the trial court had entered an order until the time for filing a notice of appeal had run. Although the trial court retains jurisdiction to rule on the supplemental matter of appellant’s motion for an extension of time to file a notice of appeal from the order awarding attorney’s fees, the record in this case does not reflect whether the trial court has ruled on the motion. See Marsh & McLennan of Ark. v. Herget, supra; Alexander v. First Nat’l Bank of Fort Smith, supra; Sunbelt Exploration v. Stephens Production, 320 Ark. 298, 896 S.W.2d 867 (1995). Thus, based upon the record now before us, we are unable to conclude whether appellant has filed a timely notice of appeal from the April 5 order awarding attorney’s fees. Accordingly, this court lacks jurisdiction over appellant’s purported appeal from the trial court’s order awarding attorney’s fees.
In conclusion, we hold that appellant filed a timely notice of appeal from a final order on March 16, 2000. We therefore decline to dismiss this appeal from the February 24 summary judgment order. However, we grant the motion to dismiss appeal from the April 5 attorney’s fees order. | [
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Carleton Harris, Chief Justice.
Appellant, Stimson Tractor Company, an Arkansas corporation engaged in selling Allis Chalmers farm equipment in Dumas, sold a new FR Allis Chalmers Gleaner Combine to Allen Heflin, appellee herein, pursuant to the terms of a security agreement. The purchase price was $20,115.21, the down payment being $5,-115.21, and the balance of $15,000 due in installments spread over a four year period. Actually, the down payment consisted of a trade-in of $7,184.74 on an older C2 Allis Chalmers Combine which belonged to appellee, less a balance still due on that machine of $2,069.53. Delivery was made around the first of September, 1971. Heflin did not make the first payment due on December 1, 1971, and appellant, after accepting reassignment from Allis Chalmers, picked up the Combine and sold it at public sale on October 11, 1972 for $10,000. The parties stipulated that the requirements of the Uniform Commercial Code were complied with by appellant relative to the recovery of the combine, notice of sale, and the subsequent sale. Thereafter, appellant instituted suit for a deficiency of $5,418.35 (including all costs of the sale), and Heflin answered and counter-claimed, asserting a breach of warranty of fitness for the purpose for which the machine was sought, and asked for damages in the amount of his down payment. The counterclaim, after stipulation, included an allegation that appellant had breached an implied warranty of merchantability. Appellant’s complaint was treated as amended to include an assertion of contractual limitation of the warranty of fitness for a particular purpose, and also an allegation that Heflin was precluded from asserting a breach of warranty by virtue of using the combine to harvest 200 acres of soybeans and approximately 60 acres of clover and Bahia grass. After stipulating that the combine was properly recovered and disposed of and agreeing that appellant’s Retail Installment Contract could be introduced, appellee assumed the burden of going forward with his evidence. At the close of this evidence, appellant moved for a directed verdict, which was denied; appellant then introduced witnesses and at the conclusion of all evidence again moved for a directed verdict. The court again denied the motion and submitted the case to the jury, which returned a nine to three verdict for Heflin in the amount of $5,115.21. From the judgment entered in accord with this verdict, appellant brings this appeal.
Heflin’s testimony detailed unsatisfactory performance of the machine, according to appellee, almost from the time he started using it, the witness mentioning a bent shaft and a burned out bearing. He stated, however, that the company fixed the shaft and put in another bearing. Heflin said that he started combining clover but the machine drew too much foliage into it and the chain broke. He fixed it, but a belt broke and the company replaced the belt. Appellee said that he didn’t combine over 40 or 50 acres of Bahia with the combine and he next used it to combine beans, but that it picked up a chunk of wood, which twisted the auger. He mentioned several instances of chunks being picked up, which would “strip the bolts” but he fixed the machine and combined 100 acres, combined a field for a neighbor, but constantly had trouble with the machine picking up too much foliage. Heflin said the machine wouldn’t “do the job, *** just wasn’t performing like it should — broke down too much.” However, he said that he got out most of his crop. His complaints could be summarized as stating that the machine “broke down” in the clover; “broke down” in the Bahia grass and “broke down” in the soybeans three times.
Company employees testified that appellee reported only two problems to the company, viz., a broken belt, and a burned out bearing due to heavy foliage, which were promptly repaired. This evidence was not disputed by appellee, who stated that either he repaired the machine or the company repaired it on all occasions, and he agreed that the complaints made were not attributable to the mechanism of the machine itself, but were due to its picking up heavy foliage and chunks. Of course, it is manifest that these repairs were only minor, else Heflin could not have made some of the repairs himself.
An important fact is that the proof does not reflect that appellee was induced, or persuaded, by any assurances of appellant to purchase the combine; rather, the record clearly reflects that Heflin picked out the combine himself. The evidence shows that Heflin made two trips to the company office, desiring to purchase an FR combine, a different model from the C-2 traded in by appellee. Heflin testified that he realized it was different, and he said that company officials, on the first visit, told him that he lived so far away that service would be difficult, the witness further stating that he was told that Stimson was in the hospital and that his permission would have to be obtained to make the sale. On the second trip, permission was obtained from Stimson, and at that point it was sold. Heflin testified that he had farmed all of his life, and, under the evidence just mentioned, there was certainly no pressure on him to purchase the machine.
Heflin’s criticisms of the combine related to the fact that there was no slip clutch, no throw out switch, and that the machine was chain driven, rather than belt driven. We reiterate that these were facts known to Heflin when the purchase was made, Heflin agreeing that he knew the combine was chain driven, and further stating that he was not told that it had a slip clutch. From the record:
“They said they’d put slip belts on it, put belts on it that would slip, and I told-Well, I didn’t tell them whether I’d take it or not and he said he’d come paint the cab. He did say that, but I just-I just wasn’t satisfied with the combine, so I let them have it back.”
The evidence reflected that to convert to a belt from a chain would have cost approximately $30.00, and Heflin was apprised of that fact.
Ark. Stat. Ann. § 85-2-608 (Add. 1961) sets out the grounds for revocation of acceptance in whole or in part. That section reads as follows:
“(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”
The proof on the part of appellee does not reflect there was any defect to be cured for he knew, as previously pointed out, when picking out the machine, that it was different from the combine he was then operating. Certainly, there was nothing to prevent this experienced farmer, who examined the machine, from being thoroughly acquainted with it, and as already stated, there were absolutely no assurances from the seller. But, even if defects had been shown, or there had been testimony of the seller’s assurances that any defects that existed would be corrected, still, there must have been a revocation of appellee’s acceptance of the machine within a reasonable time after he discovered such defects. This brings us to the evidence in that regard.
Heflin testified that he notified appellant about November 20, 1971, that he did not want the combine and the company should pick it up. He stated that on January 5, 1972, he again told the company to pick up the machine. However, this testimony is clearly contradictory to later statements made by appellee, Heflin admitting that he told company representatives in January (after the two notices he said he had given the company) that he had not then decided whether or not he would keep the machine. Not only that, but Heflin, in April, 1972, while the combine was still in his possession, offered to pay $10,000 for it. It follows from what has been said that Stimson was entitled to recover the purchase price since there was no revocation within a reasonable time, and no proof in this record of a breach of warranty; the court should have granted a directed verdict for appellant.
However, this is not to say that Heflin cannot recover damages for breach of warranty. Comment 1 to Ark. Stat. Ann. § 85-2-608 (Add. 1961) points out that a buyer is no longer required to elect between revocation of acceptance and recovery of damages for breach. Both are available to him, and accordingly, Heflin may still have a right to recover money damages provided he establishes a breach of warranty on remand of the case. Under Ark. Stat. Ann. § 85-2-607 (3) (a) and (4) (Add. 1961), the buyer is charged with the responsibility of giving notice of the alleged breach to the seller, and, of coubse, the burden of proof rests upon him. The type of damages to which Heflin might be entitled is set out in Ark. Stat. Ann. § 85-2-714 (Add. 1961). It would not appear that appellee is entitled to damages under Ark. Stat. Ann. § 85-2-715 (1) (Add. 1961) (incidental damages), since Heflin accepted the goods and, as pointed out, appellee did not establish revocation of his acceptance. Subsection (2) allows the buyer in appropriate circumstances to recover consequential damages.
We recognize that to permit Heflin to now seek damages for breach of warranty is contrary to our holding in Hudspeth Motors v. Wilkinson, 238 Ark. 410, 382 S.W. 2d 191, where this court held that there was no rejection or revocation by the buyer and we thus remanded the case for entry of a judgment in favor of the seller. Hudspeth was decided during the early years after the Uniform Commercial Code became effective in this State, and we were without benefit of briefs from both parties, only appellant submitting an abstract and a brief. We have ^.ow concluded, under the authority of the statutes cited in the previous paragraph, that this holding was in error and accordingly Hudspeth is overruled to the extent that the Circuit Court was directed to enter judgment for Hudspeth without first giving Wilkinson the opportunity to show damages for breach of warranty.
In the case before us, we are unable to say that on a retrial the evidence could not be more fully developed wherein it could be shown that appellee would be entitled to damages because the machine failed to perform its designed function of harvesting crops.
Reversed and Remanded.
Jones, Byrd, and Holt, JJ., dissent.
From the record:
“Q, All right, let me summarize then. Did you get your crop that year?'
A. Most of it, just part of it. I didn’t get it all.
Q. All right, how much in total do you think that you combined that year with that combine?
A. Around two hundred acres. | [
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J. Fred Jones, Justice.
The appellant, Ruby Helen Charleston, was charged on information with voluntary manslaughter in the killing of her paramour, James Singleton, with whom she lived as his wife and by whom she had one child. At a trial before the circuit judge, sitting as a jury, she was convicted of the charge and was sentenced to two years in the penitentiary with one-third of the time to be served before parole. On appeal to this court the appellant contends that the trial court erred in admitting statements made by the appellant into evidence, and also contends that the evidence is insufficient to sustain the conviction. We do not agree with either contention.
The appellant and the decedent lived in Little Rock and in addition to their own child, the appellant had two other children who lived in the home. The appellant was the only witness who testified as to her and James’ activities on the night of his death. She gave three contradictory statements to the police officers and also testified at the trial, and the facts upon which all versions agree appear as follows:
On the night of James’ death he and the appellant had gone to some place in or near the town of Scott where the appellant drank some beer and danced with one of the male patrons who was a stranger to them. James voiced objections to the appellant as to the manner in which she danced with the other" man. The appellant carried James’ .22 caliber revolver in her purse and on their return trip to their home in Little Rock, they both were angry and the appellant refused to talk to James. After arriving at their home in Little Rock, they continued to quarrel over the incident at Scott. James accused the appellant of dancing closer to the other man than she did with him and suggested that if she cared so much for the other man that she go to him, and the appellant responded that she might just do that. The appellant said that upon their return home from Scott, she went directly to the bathroom and James followed her. She said James jerked her up off the commode and then shoved her back down on it. Following the bathroom incident the appellant’s versions differ as to what took place until she called James’ sister by phone and stated that James had shot himself.
When James’ sister, father and the officers arrived, James was lying on his back in bed with his trousers on and with a fatal gunshot wound high on his forehead slightly on the left side. The evidence was to the effect that the course of the bullet was straight into the head and that both the appellant and James had metal tracings on their hands consistent with having handled the gun.
The appellant gave one oral and two written statements in her own handwriting to the police officers and she testified at the trial. The trial court held that her statements were voluntarily made and they were accepted in evidence. The appellant first told the officers that James asked her if she believed he loved her more than he did his parents and when she answered in the negative, he inquired if she believed he would shoot himself over her and the children and when she answered in the negative, he shot himself.
The appellant then gave a written statement in which she said that after the incident in the bathroom, James asked for his gun and she gave it to him. She said James then struck her with a belt; that she attempted to take the gun away from him and it discharged.
In the second written statement the appellant said that after the bathroom incident, she “got smart” with James and he got a belt and started beating her. She said he had done that before and she was getting tired of it. She said she got the gun with the intention of making him stop beating her; that he attempted to take the gun from her and it discharged. She said she didn’t intend to kill James but that she did it.
The appellant testified that after the bathroom incident, she had gone to the bedroom and had lain down on the bed when James came into the bedroom. She said he undressed and went to bed. She said James then told her he loved her more than he did his parents and she told him he was lying. She said she had taken the gun from her purse and placed it under her pillow. She said James then asked her if she believed he would kill himself over her and the children. She said when she answered in the negative, he started begging for the gun. She said she was lying with her back to James and she finally took the gun from under her pillow and threw it over to him. She said she then heard the gun discharge.
“. . . [T]he gun was under my pillow, and he kept asking me for his gun and I told him I wasn’t going to give him anything. And, so, he kept begging and begging, and I had my back to him and I just throwed the gun over to him, and the next thing he asked me, ‘You don’t believe I really love you and the kids more than I do my father and mother?’ and I told him no. And then he said, ‘You don’t believe I’ll kill myself over you and them kids?’, and I said no. The next thing I heard the gun go off.”
The appellant testified that before undergoing the trace metal test the officers told her that if gunpowder markings were found on her hands, she would be sent to the penitentiary for life.
“The tall detective, he told me, he said, ‘If we find gun-powders on your hand, I’ll see you in the penitentiary the rest of your life.”
The appellant said that because of this statement by the detective she became “scared” and gave the written statements. After testifying that James committed suicide as above set out, the appellant then testified as follows:
“Q. Now, Ruby, is that the first story you told the detective that was in here?
A. Yes.
Q. What did he say?
A. He said, he told me like this. He said, ‘I just can’t believe that. If we find gunprints on your hand, that’s all there is to it.’
Q. What else did he say, that’s all there is to it?
A. He meant that he would see me — he would send me to the penitentiary for the rest of my life.
Q. Why did you give that second statement, Ruby?
A. Because I was scared.
Q. Why did you write it out?
A. I didn’t know what else to do.
* * *
Q. Now, even after you gave that statement, you gave another one?
A. Yes.
Q. Why did you do that?
A. Because they keep asking me questions and questions over again, and I was scared, and I just didn’t know what else to tell them.”
James’ father, Alexander Singleton, testified that when he arrived at his son’s house, the appellant was hugging James’ body and was crying. He said he heard her say, “James I didn’t intend to do this.” Detective Plummer testified that after the appellant finished writing her second statement, she acted out the occurrence. In this connection he testified as follows:
“She explained to me at the time, this is after she had written the last statement, that she was on the bed and sitting in the middle of the bed, had this weapon in her left hand, and Mr. Singleton was standing at the foot of the bed, or either with his knees on the bed, and had his hand on the gun trying to take it from her when it went off. She acted this out for me. In other words, exhibited, you know, what had occurred.”
In both of the appellant’s handwritten statements she stated that no threats or promises had been made to get her to give the statements. While the appellant’s statements were certainly conflicting, it is really not seriously contended they were coerced by the officers or not voluntarily made. We agree with the trial court that the statements were admissible in evidence.
In 22A C.J.S. § 732, at page 1049, is found the following statement:
“The state of mind which renders a statement involuntary is that induced by mistreatment, threats, promises, or physical or mental abuse which deprives an otherwise rational mind of the exercise of its free will and powers of decision and discernment; it is not that mental condition which arises from an inner sense of wrongdoing and fear of its consequences.”
The appellant argues that in determining the volun-tariness of a confession, the court should look to the whole situation and surroundings of the accused and the appellant cites Dewein v. State, 114 Ark. 472, 170 S.W. 582, but in that case we also said:
“In order to render a confession involuntary there must be some threat or inducement held out to overcome his will.”
The appellant admitted that the officers explained her constitutional rights to her and she so states in her handwritten statements. She also testified that the officers were real nice to her. The trial judge sitting as a jury could have reasonably concluded that the statement the appellant said the officers made to her, prior to making the metal tracing test, prompted her to offer some reasonable explanation for gunpowder she had reason to believe might be found upon her hands. Her first written statement was to the effect that she was attempting to take the gun away from James when it discharged and apparently after further questioning, she admitted that she held the gun and that it discharged when James attempted to take it away from her. We are of the opinion that the statements the appellant gave the officers fell far short of being induced by mistreatment, threats, promises, or physical or mental abuse, and that the statements were voluntarily given.
Manslaughter is defined as the unlawful killing of a human being, without malice express or implied, and without deliberation. Ark. Stat. Ann. §§ 41-2207 and 41-2208 (Repl. 1964) define voluntary manslaughter as follows:
“Manslaughter is the unlawful killing of a human being, without malice express or implied, and without deliberation.
Manslaughter must be voluntary, upon a sudden heat of passion, caused by a provocation, apparently sufficient to make the passion irresistible.”
The appellant testified that James undressed and went to bed and then committed suicide after she finally gave him the pistol in compliance with his repeated requests. James had his trousers on when the officers arrived on the scene and we are of the opinion that the evidence was sufficient to support the conviction for voluntary manslaughter in this case.
Affirmed. | [
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Lyle Brown, Justice.
In this eminent domain proceeding the Highway Department took 5.75 acres of improved property, leaving 0.81 of an acre of minimal market value. For reversal appellant contends the trial court erred in refusing to let appellant introduce two transactions involving the lands taken.
The First Sale. Four years and four months prior to the taking appellee and a partner acquired the subject property for a sum considerably less than the damages sought. Appellee objected to any evidence concerning, or reference to, that sale on the ground that it was too remote in time. The court sustained the motion. We think the court fell into error. First, it must be remembered we are dealing with the sale of the subject property to condemnee. The court’s ruling precluded any cross-examination of appellee with respect to the sale, which cross-examination should be allowed for the purpose of testing his credibility. On cross-examination of appellee, appellant asked the court for permission to inquire as to the purchase price of the land. The request was denied. Second, we do not think it was proper to hold as a matter of law that the sale was too remote in time. If the appellant could lay the proper foundation it should be permitted to introduce the sale. It is not uncommon for an expert witness to use a purported comparable sale when the witness makes proper adjustments for the passage of time and any fluctuation in values which has occurred since the sale. The general rule is well stated in Nichols on Eminent Domain (3rd Ed. 1974) § 12.311 [1]:
When a parcel of land is taken by eminent domain, the price which the owner paid for it when he acquired it is one of the most important pieces of evidence in determining its present value. However, this assumes that the sale was recent, was a voluntary transaction between parties each of whom was capable and desirous of protecting his own interests, and that no change in conditions or marked fluctuation in values has occurred since the sale. A price paid under such conditions is a circumstance which a prospective purchaser would seriously consider in determining what he himself should pay for the property. As evidence before a jury, it consumes little time in introduction and raises few collateral issues, so that every argument is in favor of its admissibility.
We adhere to the recited rulé but we think the trial judge should not have ruled out, as a matter of law, the sale to the condemnee until and unless it is shown that it is far removed from the date of condemnation and that changes in con ditions are such as to make the transaction substantially useless in determining present day value.
The Second Sale. In 1970, two years prior to the taking, appellee landowner purchased the one-half interest of his partner. Upon objection being made by the landowner, the court ruled that reference could not be made to the sale. The ruling was based on the fact that the landowner propounded interrogatories to appellant prior to trial; that in those questions appellant was asked to list the comparable sales on which it expected to rely; and that appellant did not list the 1970 transaction between the partners. Again, the effect of the ruling was to deprive appellant of the opportunity to cross-examine the landowner regarding the transaction. However, in the event of another trial the appellant, upon laying the proper foundation, may introduce the sale. That is because appellee will have had ample notice that appellant proposes to introduce evidence thereon; consequently no prejudice could result from the failure to list the sale in the interrogatories.
Reversed and remanded. | [
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DONALD L. Corbin, Justice.
This is an illegal-exaction suit. stJ. ice. E. Worth, and other Appellants, are residents and owners of real property in Benton County, Arkansas. They filed suit on behalf of themselves and other Benton County property owners against the City of Rogers; Dr. Randall A. Spear, Superintendent of the Siloam Springs School District; Mary L. Slinkard, Benton County Clerk; David Green, Benton County Collector; and members of the Bentonville, Rogers, and Siloam Springs school boards, alleging that ad valorem property taxes were collected in violation of Amendment 59 of the Arkansas Constitution. This appeal involves issues of statutory and constitutional interpretation; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(6). We reverse the trial court’s grant of summary judgment and remand this matter for trial.
History and Background
There are various constitutional and statutory provisions implicated in this appeal. In order to fully understand the arguments presented by the parties, it is helpful to first review a brief history of these provisions. In 1979, this court ordered that a statewide reassessment plan was to take effect by January 1, 1981, in order to ensure that property was taxed according to its value and that this value was uniform throughout the state. See Arkansas Pub. Serv. Comm’n v. Pulaski County Bd. of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979). In order to prevent a sudden and dramatic increase in tax bills as a result of this decision, Amendment 59 was added to the Arkansas Constitution. Amendment 59 provides that whenever a countywide reassessment results in an increase of the aggregate value of taxable real and personal property of ten percent or more over the previous year, each taxing unit must adjust or roll back taxes. The amendment goes on to state that the General Assembly shall establish the procedures to be followed by a county in making a countywide reappraisal. The General Assembly did establish such procedures in Ark. Code Ann. § 26-26-401 (Repl. 1997). That section provides:
The provisions of this subchapter relative to the adjustment or rollback of millage levied for ad valorem tax purposes shall be applicable only where there is a countywide or statewide reappraisal of property:
(1) Pursuant to court order; or
(2) Pursuant to directive of law enacted by the General Assembly; or
(3) When the reappraisal is initiated by the assessor, the county equalization board, by directive of the quorum court or upon request of one (1) or more taxing units of a county, and is determined and certified by the Assessment Coordination Division of the Arkansas Public Service Commission as constituting a comprehensive countywide reappraisal; or
(4) When ordered by or implemented by a county pursuant to a directive of the division or its successor agency.
Act 758 of 1995 was enacted and codified at Ark. Code Ann. § 26-26-305 (Repl. 1997) and required assessors to reappraise all property at least once every five years, while purporting to exempt such mandated countywide reappraisals from Amendment 59. Act 836 of 1997, codified at Ark. Code Ann. § 26-26-306 (Repl. 1997), repealed Act 758 and found, in its emergency clause, that Act 758 had placed an unfair burden on the taxpayers of Arkansas by directing county wide reappraisals of property in a manner which circumvented the rollback provisions of Amendment 59. Act 836 instituted provisions to remedy the unfair tax burden placed on tax payers as a result of Act 758. The present appeal stems from the interpretation and application of these laws.
The record reflects that in early 1990, Shirley Sandlin, the Benton County Assessor, began a reappraisal of the real estate in Benton County. This reappraisal included all of the taxing units within the county. Ms. Sandlin testified that she began the reappraisal in order to comply with the statutory duty that county assessors keep appraisal and assessment data and records current by maintaining the proper ratio of real property values to the market value. See Ark. Code Ann. § 26-26-302 (Repl. 1997). Ms. Sandlin wanted to ensure that the assessed value of the real and personal property in the county remained within eighteen to twenty percent of the true market value. At the time of this reappraisal, however, there was no procedure in place to separate newly discovered property for purposes of determining proper millage rates. The reappraisal was a cyclical review that took five years to complete. Upon completion, however, the entire county had been reappraised. This assessment was never certified by the Assessment Coordination Department (ACD), thus the provisions of Amendment 59 were never triggered and no rollbacks took place. Ms. Sandlin testified, however, that the reappraisal was not certified because she never sought such certification from the ACD. Furthermore, Appellants submitted affidavits stating that there was no formal certification process established through the ACD; rather, it was the duty of county officials to request such certification. Ms. Sandlin also testified that prior to undertaking the reappraisal in 1990 she discussed with Larry Crane, then director of the ACD, that a cyclical review would not trigger the provisions of Amendment 59.
Act 758 was passed by the General Assembly after completion of this reappraisal and triggered another reappraisal beginning in 1996. This reappraisal ended on October 23, 1997, and was ultimately certified by the ACD as a countywide reassessment, subject to the provisions of Amendment 59. The record indicates that pursuant to section 26-26-306, Benton County began, and completed the rollback resulting from the 1996-97 reappraisal. A rollback of property values was subsequently implemented for the reappraisal that occurred in 1997. The increases resulting from the 1996 portion of the reappraisal, however, were never included in the calculations used to determine the proper rollback, even though Ms. Sandlin acknowledged that she did not complete any one taxing unit in 1996.
Appellants filed suit in the circuit court of Benton County on April 25, 1997, challenging the property-tax collections made by the school districts and the City of Rogers as premature and occurring prior to the completion of the cyclical reappraisal. Appellants further alleged a failure to rollback the millage rates for the tax years 1995 and 1996. Appellants also filed suit in Benton County Court on May 2, 1997, challenging the county’s failure to calculate the rollback following the countywide reappraisals. The two actions were subsequently consolidated into the present matter.
Appellees filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6), alleging that Appellants faded to state a claim upon which relief could be granted. Specifically, Appellees argued that Appellants failed to allege in any of their pleadings that the 1990-95 reappraisal was conducted pursuant to one of the four factors set out in section 26-26-401 and thus, were not entitled to any relief. Appellees further argued that Appellants were not entitled to any refund of taxes paid because they failed to allege that any taxes were paid under protest.
The trial court treated the motion to dismiss as one for summary judgment as to the assessment for the period from 1990-96. In so doing, the trial court found summary judgment to be appropriate because there were no genuine issues of material fact to be decided. Specifically, the trial court found that the cyclical reappraisal begun in 1990 and ending in 1996 did not constitute a countywide reappraisal, thus a rollback of millage rates was not required, nor was a refund of taxes required. The trial court also found that section 26-26-306 did not apply to the cyclical reappraisal begun in 1996 because the statute provided that taxes due and owing at the time of it’s effective date, March 26, 1997, would continue to be due and owing. Furthermore, the trial court found that while section 26-26-306 did apply to the property assessed in 1997, the assessor’s office had taken steps to effectuate a rollback, thus rendering this issue moot. However, the trial court also stated that while such issue was moot, Appellants were not barred from challenging the validity of the 1997 rollback in a separate proceeding. Finally, the trial court determined that Appellants were not entitled to any tax refund as such taxes had not been paid under protest.
Appellants set forth six points for reversal. They contend that: (1) the grant of summary judgment was error because controverted issues of material fact existed; (2) the 1996 reappraisal was a countywide appraisal for purposes of Amendment 59; (3) section 26-26-306 did not exempt the 1996 taxes from the provisions of Amendment 59; (4) the issue of the 1997 taxes was not moot; (5) the cyclical reappraisal from 1990-95 was a countywide reappraisal subject to the provisions of Amendment 59; and, (6) their taxes need not be paid under protest to be refundable.
Standard of Review
We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, 327 Ark. 577, 940 S.W.2d 445. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Boyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. George, 337 Ark. 206, 987 S.W.2d 710.
Genuine Issue of Material Fact
Appellants argue that summary judgment was inappropriate because they presented evidence that the reappraisals were subject to the provisions of Amendment 59. They further argue that this evidence established the existence of a genuine issue of material fact. Appellees argue on the other hand that there was no genuine issue of material fact because Appellants failed to allege that any reappraisal was conducted pursuant to one of the four procedures outlined in section 26-26-401, and thus Amendment 59 is inapplicable. We disagree with Appellees’ contention.
A review of the evidence reveals several conflicting statements made by Ms. Sandlin regarding the nature of these reappraisals. In her affidavit taken on July 10, 1997, Ms. Sandlin stated that she did not believe that the rollback provision of Amendment 59 applied to any of the taxing units in the county under the circumstances of appraisal conducted by her office for the period of time between 1990 and 1996. Yet, in a letter to Ms. Sandlin dated November 6, 1997, the director stated that the rollback provision was applicable to the reappraisal begun in 1996 and completed in 1997.
Other contradictions appear in Ms. Sandlin’s deposition as well. For instance, Ms. Sandlin makes numerous comparisons between the 1990-95 reappraisals and the 1996-97 reappraisals, including the fact that the same techniques were used in both, but then states that only the 1996-97 reappraisal was countywide for purposes of Amendment 59. Ms. Sandlin also stated that she reevaluated all the real property in Benton County between the years 1990-95 and 1996-97, but then later states that she did not believe that what she did in 1990-95 was a countywide reappraisal. Furthermore, Ms. Sandlin even stated that the 1990-95 reappraisal was more comprehensive than the 1996-1997 reappraisal. This series of conflicting statements and discrepancies indicates that Ms. Sandlin was not sure whether or not her actions triggered the provisions of Amendment 59.
This court has consistendy held that summary judgment is proper only when the claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999). A mere suspicion in the mind of the party against whom summary judgment is sought will not create a genuine issue of material fact. Biedenharn v. Hogue, 338 Ark. 660, 1 S.W.3d 424 (1999). The pleadings, affidavits, and other materials in the present matter, however, give rise to more than a mere suspicion that the reappraisals conducted in Benton County were countywide reappraisals subject to the rollback provision of Amendment 59. There is conflicting evidence regarding the circumstances surrounding the reappraisals. Further development of these facts is required in order to determine the true nature of the reappraisals. Moreover, it is clear in the present matter that the trial court incorrecdy resolved any doubts or inferences regarding the nature of these reappraisals against Appellants instead of Appellees. Summary judgment, therefore, was not warranted as a matter of law. Adams, 333 Ark. 53, 969 S.W.2d 598; Pugh, 327 Ark. 577, 940 S.W.2d 445. Accordingly, the trial court erred in granting Appellees’ motion.
1996 Reappraisal
Appellants also contend that the trial court erred in finding that the portion of the reappraisal conducted in 1996 did not constitute a countywide reappraisal under Amendment 59 or section 26-26-401. They argue that such a finding was in direct conflict with the evidence that they presented showing that the 1996-97 reappraisal was conducted in accordance with section 26-26-401. Such evidence includes testimony from Ms. Sandlin that the reappraisal was initiated at her behest. She also testified that the reassessment begun in 1996 was a countywide reappraisal and was certified as such by the ACD. The certification letter from the ACD was introduced into evidence as well. Ms. Sandlin further testified that no single taxing unit was completed during the portion of the reappraisal conducted in 1996. Clearly, the evidence before the trial court established the fact that this reappraisal was a countywide reappraisal as set forth in section 26-26-401. Appellees not only failed to introduce evidence that the reappraisal was not countywide, but also conceded on the record that the reassessment begun in 1996 was subject to the provisions of Amendment 59. Accordingly, the trial court erred in finding that the reappraisal begun in 1996 was not a countywide reappraisal.
Act 836 and Amendment 59
Next, Appellants contend that it was error for the trial court to interpret section 26-26-306(e) as exempting 1996 taxes from the rollback provision of Amendment 59, and thus not entitling them to a refund. The trial court stated that because the taxes from 1996 were due and owing at the time the law took effect, the provisions of section 26-26-306 were inapplicable to those taxes. Appellants argue that the correct interpretation of this section is not that subsection (e) creates an exemption from millage rollbacks, but rather that those taxes due and owing at the time of the effective date need not be recalculated based on pre-assessment values as required by subsection (d).
Section 26-26-306 specifically states that any reappraisal begun in accordance with section 26-26-305, such as the 1996-97 Benton County reappraisal, shall be deemed to be a countywide reappraisal. Furthermore, if a county has begun such a reappraisal, it must use valuations that were applicable prior to the valuation adjustments pending completion of the countywide reappraisal. Section 26-26-306(e) states that:
Ad valorem taxes which are due and owing on March 26, 1997, shall continue to be due and owing and shall not be affected by the terms of this section.
This court has said that in determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). If the language of a statute is clear and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. The language in section 26-26-306(e) is unambiguous. The trial court, however, goes beyond the clear language of the section in ruling that the 1996 taxes were not affected by the rollback provision. In his. ruling, the trial court stated:
Section 2(e) of that Act provided that any ad valorem taxes due and owing on the effective date of the Act were not affected by the Act and would continue to be due and owing. The effective date of Act 836 was March 26, 1997. As taxes levied for 1996 were due and owing on that date (See Ark. Code Ann. Sec. 26-35-501(a)(1)), the provisions of Act 836 do not apply to those taxes. Additionally, as stated above, the portion of the second cycle of reappraisal began in 1996 did not constitute a countywide reappraisal under Amendment 59 and/or Ark. Code Ann. Sec. 26-26-401 et seq., and accordingly, a rollback of millage rates was not required for that year and Plaintiffs are not entitled to a refund of taxes paid for that year.
The trial court based its finding that a rollback was not required on an erroneous interpretation of section 26-26-306. Logic does not dictate reading this section in a manner that excludes the 1996 taxes from the rollback provision of Amendment 59.
The trial court’s interpretation of subsection (e) that any taxes due and owing are not subject to a rollback essentially carves out an exception to the requirements of Amendment 59. As this court held in Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998), the attempt of Act 758 to circumvent the rollback provisions of Amendment 59 was unconstitutional. Likewise, any attempt to now interpret the provisions of Act 836 in a manner inconsistent with the dictates of Amendment 59 is also invalid.
Mootness
On this point for reversal, Appellants argue that the trial court erred in finding that the issue surrounding the 1997 taxes was moot because the county had begun to complete the rollback of millage rates for the reappraisal ending in 1997. As Appellants correctly point out, for this issue to be moot there must be no controversy, thus rendering any decision in the case a mere advisory opinion. See Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998). In the present matter, Appellants allege that there is indeed a controversy because they presented evidence that the rollback was not conducted in accordance with the requirements of Amendment 59. Appellants introduced the calculations of the county clerk used by the taxing authorities to determine the amount of any rollback. Those calculations evidenced the fact that the increases from 1996 were completely excluded and the values from 1997 were the only ones considered. Appellants argue that this was invalid, thus creating a genuine issue of material fact that must be resolved. We agree.
The trial court made a decision regarding the disputed fact of whether the 1996 figures should be used in rollback calculations. This decision was based on its erroneous finding that 1996 was not a countywide reappraisal. Appellees had the burden of establishing that there was no disputed fact. They failed to meet this burden with any proof that the method of calculating the rollback did not violate Amendment 59. On the other hand, Appellants submitted proof to establish that the 1996 figures had been discarded. This court has said on numerous occasions that at the summary-judgment stage any doubts or inferences must be resolved against the moving party. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). The trial court did not follow the law in this regard, and therefore, its ruhng on this point was erroneous.
1990-95 Reappraisal
Appellants argue that the 1990-95 reappraisal program was in fact a countywide reappraisal subject to the provisions of Amendment 59. The record indicates that the appraisal begun in 1990 was for the purpose of maintaining assessed values of real property at twenty percent of the fair-market value as required by the law. As previously pointed out, there is contradictory evidence regarding whether this reappraisal constituted a countywide reappraisal. The burden is on the moving party to establish that there are no genuine issues of material fact in controversy. Quirk, 323 Ark. 769, 918 S.W.2d 138. Appellees have clearly failed to meet this burden.
It is apparent in this case that Appellants were not given the benefit of the doubt. The only evidence put forth by Appellees to support their argument that this was not a countywide reappraisal was the fact that none of the four requirements of section 26-26-401 were met. Appellants on the other hand put forth proof to support their contention that it was a countywide reappraisal, including statements by the assessor that it was in fact countywide.
Appellants also contend that two of the requirements of section 26-26-401 were actually met. First, Appellants argue that subsection (2) which requires that the appraisal be at the “directive of law enacted by the General Assembly” is applicable because Sandlin testified in her deposition that she began the 1990 reappraisal in order to keep her assessment records current, as mandated by section 26-26-302. Appellants also argue that the appraisal conforms with subsection (3) because it was instigated at the behest of the assessor, even though the appraisal was never certified by ACD. Appellants contend that it is enough that the assessor initiated the reappraisal, and she should not be rewarded for failing to seek certification by exempting the appraisal from the scope of Amendment 59.
Appellees allege repeatedly that Amendment 59 provides that the General Assembly may determine which reappraisals qualify for Amendment 59. Amendment 59 states in relevant part:
(a) Whenever a countywide reappraisal or reassessment of property subject to ad valorem taxes made in accordance with procedures established by the General Assembly shall result in an increase in the aggregate value of taxable real and personal property in any taxing unit in this State of ten percent (10%) or more over the previous year the rate ... be adjusted or rolled back, by the governing body of the taxing unit, for the year for which levied as provided below. The General Assembly shall, by law, establish the procedures to be followed by a county in making a countywide reappraisal or reassessment of property which will, upon completion, authorize the adjustment or rollback of property tax rates or millage, as authorized hereinabove.
This court has said that, when interpreting a provision of the Arkansas Constitution, if the language of a provision is plain and unambiguous, each word must be given its obvious and common meaning, and neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Hoyle, 334 Ark. 529, 975 S.W.2d 843 (citing Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998)). This court went on to hold in Hoyle that section 26-26-401 did in fact describe the correct procedure for initiating a bona fide reappraisal, but further stated that establishing a procedure was far different from exempting county reappraisals from a millage rollback. Id.
Interpreting section 26-26-401 as Appellees urge, their argument essentially carves out an exception to Amendment 59. There was evidence in the record that established the fact that the ACD does not certify these reappraisals unless requested to do so by the assessor. If subsection (3) is interpreted to mean that a reappraisal is never countywide unless certified, then assessors in each county will be able to avoid the rollback provision of Amendment 59 by never seeking certification from ACD when conducting reappraisals. Such an interpretation defeats the intent and purpose of Amendment 59. While we do not presume to interpret the meaning of the statute at this stage of the proceedings, we point out that we have already concluded that there are issues of fact in controversy that need to be developed and those issues should not be resolved in a manner inconsistent with the spirit of Amendment 59 or this court’s prior case law.
Voluntary Payment of Taxes
For their final point on appeal, Appellants argue that the trial court erred in finding that taxes were not refundable unless paid under protest. First, Appellants contend that any taxes paid after this action was filed were paid involuntarily. This action was filed in 1997, thus, they argue that because the taxes paid in 1997 would have been for the tax year 1996, any taxes from that point on would certainly be involuntary. This court recently reaffirmed the rule that taxes paid voluntarily are not recoverable. Hoyle, 334 Ark. 529, 975 S.W.2d 843. Flowever, this court went on to hold in Hoyle that taxes paid after the filing of a complaint are deemed to be taxes paid under protest and, thus, not voluntary.
Appellees concede that the trial court erred with respect to this point, but argue that because the taxes levied for 1996 were not illegal, any issue of voluntary payment is rendered moot. They base this argument on the trial court’s erroneous determination that section 26-26-306 exempted the 1996 tax payments from the rollback provision of Amendment 59. Thus, AppeEees’ argument on this point fails.
AppeEants next argue that the trial court erred in finding that AppeEants were not entitled to a refund of any taxes unless they were paid under protest. They contend that the common law should govern because there is no statute that requires payment under protest in the present situation. While it is true that there is no apphcable statutory requirement for payment under protest, this court has held that it always foEows the common-law rule prohibiting the recovery of voluntarily paid taxes. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied, 462 U.S. 1111 (1983). This court in Cash also held that this common-law rule applied to Elegal exactions. Likewise, in Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995), this court held that taxes voluntarfiy paid prior to the time when a suit was filed were not recoverable. In Mertz, this court set out the underlying principle behind its rule:
When taxes are paid to a government they are deposited into that government’s general revenues and ordinarüy are spent within that tax year. However, when the government is put on notice that it may be required to refund those taxes, it can make the appropriate allowances for a possible refund. See Hercules, Inc. 319 Ark. at 707, 894 S.W.2d at 578. If we were to allow refunds for taxes voluntarily paid in previous years, it would jeopardize current and future governmental operations because current and future funds might be necessary for the refund.
Id. at 370, 896 S.W.2d at 594.
Appellants argue that voluntary is not used in its ordinary sense, but instead requires the existence of certain facts. Those facts include: (1) whether the payment was made with full knowledge of the facts; and (2) whether there was coercion involved. Appellants essentially argue that because a taxpayer must pay taxes or face the possibility of losing his property, coercion is a factor in this case. Appellees respond that this argument is without merit, even if it is determined that the taxes are illegal, and cites to cases holding coercion must amount to a situation where the taxpayer has no other relief available to him. See Chapman & Dewey Land Co. v. Board of Directors of St. Francis Levee Dist., 172 Ark. 414, 288 S.W. 910 (1926).
In Brunson v. Board of Directors of Crawford County Levee Dist., 107 Ark. 24, 27, 153 S.W. 828, 829 (1913), this court held that:
Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back.
The court went on to hold in Brunson that the payments were voluntary because there was no immediate danger that the appellant would lose his property or suffer irreparable harm for failing to pay his taxes. Conversely, in Paschal v. Munsey, 168 Ark. 58, 268 S.W. 849 (1925), this court held that taxes were not paid voluntarily where the tax collector had the authority to take and sell the appellants’ land for failing to pay their taxes.
In Chapman, 172 Ark. 414, 288 S.W. 910, this court held that coercion that renders a payment of taxes involuntary must consist of some actual or threatened exercise of power possessed by the party exacting or receiving payment over the person or prop erty, from which the latter has no reasonable means of immediate relief, except by .making payment. Appellants contend that the statutory scheme governing the nonpayment of property taxes satisfies the requirement of coercion. They point to Ark. Code Ann. § 26-34-101 (Repl. 1997) to support their argument. This section provides in relevant part:
(a) Taxes assessed upon real and personal property shall bind them and be entitled to preference over all judgments, executions, encumbrances, or liens whensoever created.
(b) All taxes assessed shall be a Hen upon and bind the property assessed from the first Monday of January of the year in which the assessment shall be made and shall continue until the taxes, with any penalty which may accrue thereon, shall be paid.
Appellants further argue that the procedure for handling property not redeemed through payment of delinquent taxes provides additional support that their taxes were not paid voluntarily See Ark. Code Ann. § 26-37-101 (Repl. 1997).
Appellants also point out that their pleadings contain statements that any taxes paid were not paid with full knowledge of the facts that rendered the demand illegal. They contend that there was no information available prior to the filing of the lawsuit that would have alerted the taxpayer that the assessment was illegal. They argue that the issue of whether there was full knowledge is a fact in dispute. We agree. Clearly, there are genuine issues of material fact surrounding the payment of taxes resulting from the 1990-95 reappraisal. These issues are whether the tax payments were made as a result of coercion and whether the payments were made with full knowledge of the facts. Accordingly, these issues require further development at the trial-court level in order to determine whether the taxes were paid voluntarily.
In sum, because there are genuine issues of material fact surrounding the nature and scope of the Benton County reappraisals, the calculation of the rollback resulting from the 1996-97 reappraisal, as well as the voluntariness of taxes paid, we reverse the trial court’s grant of summary judgment and remand this matter for proceedings consistent with this opinion.
Reversed and remanded.
G. William Lavender, Spl. J., joins in this opinion.
Arnold, C.J., and Thornton, J., dissent.
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DONALD L. Corbin, Justice.
Appellant Burford Distributing, icappeals e. judgment of the Sebastian County Circuit Court awarding Appellee Danny Starr $40,000 in damages, plus an additional $10,000 in attorney’s fees, for a violation of the Arkansas Prize Promotion Act. As this matter involves an issue of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We agree with Appellant that the Act is not applicable in this case, and thus, reverse the judgment of the trial court.
On August 3, 1996, Burford sponsored the “10th Annual Lite Open” golf tournament at Deer Trails Golf Course in Fort Chaffee, Arkansas. Each participant was required to pay a $40 entry fee. Robert Hornung, an employee of Burford’s, testified that of that $40, $10 went to the Gregory Kistler Center, a local charity; $25 went to Deer Trails; and, $5 went to Burford to off-set the expense of the tournament. Burford did not make a profit as a result of sponsoring the golf tournament. To promote the event, Burford created and distributed flyers advertising the date and location of the golf tournament. Burford also advertised the fact that it would be awarding a car to the first person to score a hole-in-one on August 3.
Mr. Starr paid his entry fee approximately one week prior to the tournament. He learned of the tournament through an acquaintance, but had also played in the tournament in previous years. Mr. Starr testified that he did not know about the car giveaway at the time he paid his entry fee. Mr. Starr stated that he received a packet upon arriving at the tournament that contained a flyer advertising the hole-in-one contest. He also admitted, however, that he saw a large banner on Hole No. 17 that stated that the first person to make a hole-in-one on that hole would win a 1996 Buick Regal from Harry Robinson Pontiac.
This tournamentwas an eighteen-hole competition, but Deer Trails was only a nine hole golf course. Each of the nine holes has two separate tee areas in order to accommodate eighteen holes of golf. The holes numbered 8 and 17 shared the same green, but the tee box for Hole No. 17 was located farther away from the hole than the tee box for Hole No. 8. Mr. Starr scored a hole-in-one on Hole No. 8, but later demanded the car, arguing that the flyer simply promised a car to the first player to score a hole-in-one.
After Burford refused to award Mr. Starr the Buick Regal, he filed suit in circuit court alleging breach of contract and violation of the Arkansas Prize Promotion Act, codified at Ark. Code Ann. §§ 4-102-101 — 109 (Repl. 1996). Mr. Starr ultimately dismissed the breach of contract claim, but a jury trial was held on the issue of whether Burford violated the Act. The jury found that Burford had intentionally violated the Act and awarded Mr. Starr $40,000 in pecuniary loss, an amount equal to twice the retail value of the Buick Regal. In addition, the trial court awarded Mr. Starr an additional $10,000 in attorney’s fees. This appeal followed.
As one of its points on appeal, Burford contends that the trial court erred in denying its motion for directed verdict on the grounds that the Act does not apply under the facts and circumstances of this case. Mr. Starr responds that the Act is remedial in nature and should be liberally construed. This court has repeatedly held that the basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Nelson v. Timberline Int’l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998); Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). In attempting to ascertain legislative intent, this court will look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, legislative history, and other appropriate matters that shed light on the matter. Nelson, 332 Ark. 165, 964 S.W.2d 357; Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997).
It is not difficult to ascertain the legislative intent of this Act because it is set out in section 4-102-101. A review of this section indicates that the legislature did not intend for the provisions of this Act to extend to the circumstances presented by this case. Section 4-102-101 states:
(a) The Arkansas General Assembly has become aware of the avalanche of sweepstakes, contests, and prize promotions that have been and are being directed at Arkansas consumers, and recognizes that consumers are often misled by these sweepstakes, contests, and prize promotions. The General Assembly also recognizes that Arkansas consumers have paid hundreds of thousands of dollars to sweepstakes, contests, and prize promoters based upon misrepresentations by those promoters to Arkansas consumers. Many of the sweepstakes, contests, and prize promotions are artfully crafted to lead Arkansas consumers to believe that they have been selected to receive valuable prizes, when such is not the case. The promotions often mislead Arkansas consumers as to the value of the prizes. The promotions often mislead Arkansas consumers as to their chances to receive the prize. The promotions often mislead Arkansas consumers to believe that they must purchase the promoter’s product, or otherwise pay to the promoter sums of money in order to be eligible to receive the prize, or that the likelihood that the prize to be awarded will be increased, or that the consumer’s application for the prize will receive special handling if the consumer purchases the promoter’s product. These sweepstakes, contests, and prize promoters prey particularly upon elderly Arkansas consumers.
.(b) It is the intent of the General Assembly through the enactment of this chapter to require that Arkansas consumers be provided with all relevant information necessary to make an informed decision concerning sweepstakes, contests, and prize promotions. It is also the intent of the General Assembly to prohibit misleading and deceptive prize promotions. This chapter shall be construed liberally in order to achieve this purpose. [Emphasis added.]
Clearly, the General Assembly wanted to put a stop to the deceptive practices of sweepstake companies and other promoters that mail notices to consumers promising them the chance to win valuable prizes.
It is true that pursuant to section 4-102-101, this court must liberally construe the provisions of this subchapter. This requirement of liberal construction does not require, however, that we extend this legislation to situations not envisioned by the General Assembly. We have said before that even when reviewing an act under a liberal construction, this court must still apply its provisions according to their plain meaning. See Stockton v. Sentry Ins., 337 Ark. 507, 989 S.W.2d 914 (1999). We will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. See St. Paul Fire & Marine Ins. Co. v. Griffin Constr. Co., 338 Ark. 289, 993 S.W.2d 485 (1999). The plain meaning of this Act’s provisions is to prevent unfair contest practices by requir ing promoters to provide consumers with all necessary information to make informed decisions about these sweepstakes and contests before they agree to purchase the promoter’s products.
Here, Burford did not require participants to purchase its products in order to be eligible for a chance to win the car. Mr. Starr was not required to pay anything other than his entry fee in order to compete for a chance to win the car. Other than the fact that he may have been a better golfer, Mr. Starr had the same chances of winning the automobile as every other player. There was no evidence introduced that Burford ever misled Mr. Starr about his chances of winning the car or that Burford ever indicated that Mr. Starr had won the car. In fact, the hole-in-one competition at issue in this case is a game of skill. It would have been impossible for Burford to provide Mr. Starr or any other participant with information on his chances of winning the car.
We also point out that section 4-102-105 provides further insight into the underlying purpose of this Act. This section sets forth certain practices that a sponsor may not engage in when offering prizes. Some of those prohibited practices include: misleading participants about the source of the prize; representing directly or by implication that the number of persons eligible to win is limited or that a person has been selected to receive a particular prize, unless true; representing that a person has an enhanced likelihood of winning a prize; representing directly or by implication that a person will have an increased chance of receiving a prize by making multiple purchases or donations; representing that a prize notice is urgent; or requesting that a person disclose personal information in connection with a prize promotion. The fact that Burford never engaged in any of these prohibited practices is also important to our determination that the Act is inapplicable in this case. Mr. Starr admitted that he never received any communication from Burford that induced him to participate in the golf tournament. He further admitted that at the time he agreed to participate in the tournament, he had no knowledge of the fact that Burford was offering a car in connection wdth a hole-in-one contest. Thus, Mr. Starr’s payment of the entry fee was in no way connected with the car giveaway. Accordingly, we reverse the trial court’s judgment because the Act is not applicable to this case.
Burford raises several other points on appeal but in light of our holding that the Act is inapplicable, the only other issue we must address involves the award of attorney’s fees. Burford argues that it was error for the trial court to enter an award of $10,000 for attorney’s fees pursuant to section 4-102-103. It is not necessary for us to address Burford’s specific argument on this point. We have previously held that when a judgment in favor of a prevailing party is reversed, the award of attorney’s fees must also be reversed. See Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999); Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990). Accordingly, the award of attorney’s fees in this case is also reversed.
Reversed.
Brown and Imber, JJ, dissent.
ROBERT L. Brown, Justice,
dissenting. I agree with the sticJustice e, on the issue of sponsorship and the liberal construction of the Arkansas Prize Promotion Act. However, I disagree with her analysis of “pecuniary loss” and her conclusion that the trial court erred in not giving the instruction of Burford Distributing. In my opinion, what constituted a pecuniary loss under the Act was for the jury to decide. I would affirm. | [
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W.H. “Dub” Arnold, Chief Justice.
Appellant, Beverly Enterprises-Arkansas, tice. the instant appeal challenging the circuit court’s order granting appellee Paul Hillier’s motion for voluntary nonsuit and dismissing his complaint without prejudice. In response to Beverly’s appeal, Hillier argues that the appeal should be (1) dismissed because the circuit court’s order was not final for purposes of appeal, or (2) affirmed because Beverly waived the issue by failing to obtain a ruling on its motion to set aside the challenged order. The Court of Appeals certified this case for us to consider whether the circuit court’s order granting appellee’s motion for nonsuit constitutes a final order for purposes of appeal. We agree with appellee that the circuit court’s order was not a final, appealable order. Accordingly, we grant appellee’s motion to dismiss Beverly’s appeal for lack of jurisdiction. See Ark. R. App. R — Civil 2(a) (1999).
Background
After being appointed guardian of his mother, Dorothy Hillier, Paul Hillier commenced a civil negligence action on her behalf against Beverly on June 19, 1997. Dorothy then died on December 10, 1997. Paul then filed a second amended complaint on February 9, 1999. Ultimately, on April 29, 1999, Beverly filed a motion to dismiss, pursuant to Ark. R. Civ. P. 12(b)(6). Specifically, Beverly argued that the circuit court should dismiss the complaint with prejudice because Hillier (1) failed to revive the action within one year after Dorothy’s death, as required by Ark. Code Ann. section 16-62-108, and (2) failed to commence a new action, through the estate’s administrator, pursuant to Ark. Code Ann. section 16-56-117(c).
Shortly after Beverly filed its motion to dismiss, Hillier filed a motion on May 12, 1999, to nonsuit the case pursuant to Ark. R. Civ. P. 41 (1999). On that same day, the circuit court granted Hillier’s motion and dismissed the complaint without prejudice. On May 21, 1999, Beverly filed a response to Hillier’s motion to non-suit and a motion requesting that the circuit court set aside its May 12th order. Notably, the circuit court never ruled upon Beverly’s prior motion to dismiss or upon its motion to set aside the court’s order. Beverly then filed a notice of appeal on June 10, 1999, challenging the May 12, 1999, order.
Finality of nonsuit order
Ark. R. App. P. — Civil 2(a) (1999) permits the appeal of final judgments, decrees, or orders, which in effect discontinue the action or determine the action and prevent a judgment from which an appeal might be taken. Significantly, the supreme court will not reach the merits of an appeal if the order appealed from is not final or does not fall within one of the enumerated exceptions. See Wilburn v. Keenan Cos., 297 Ark. 74, 76, 759 S.W.2d 554, 555-56 (1988) (citing Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987)); Ark. R. App. P. — Civil 2(a) (1999). In fact, the rule that an order must be final to be appealable is a jurisdictional requirement, observed to avoid piecemeal litigation. Wilburn, 297 Ark. at 75-76, 759 S.W.2d at 555. We have held that for an order to be final and appealable, it must terminate the action, end the litigation, and conclude the parties rights to the matter in controversy. Petrus v. Nature Conservancy, 330 Ark. 722, 725, 957 S.W.2d 688, 689 (1997); Allred v. National Old Line Ins. Co., 245 Ark. 893, 895-96, 435 S.W.2d 104, 106 (1968).
Here, Hillier claims that the circuit court’s order granting nonsuit and dismissing the claim without prejudice is not a final order or an adjudication on the merits because the merits of the cause are not finally determined. See Melton v. St. Louis I. M. & S. Ry. Co., 99 Ark. 433, 436, 139 S.W. 289, 291 (1911). We agree. First, contrary to Beverly’s assertion, a plaintiff has an absolute right, pursuant to Ark. R. Civ. P. 41(a), to voluntarily nonsuit a claim without prejudice. Whetstone v. Chadduck, 316 Ark. 330, 332, 871 S.W.2d 583, 584 (1994). Rule 41(a) provides that “an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court... [and] such a dismissal is a matter of right.” We have consistently upheld this provision. See Whetstone, 316 Ark. at 332, 871 S.W.2d at 584. Second, we have expressly held that where a plaintiff has exercised his absolute right to voluntarily dismiss his claim, the first dismissal is without prejudice and is not an adjudication on the merits. See Lemon v. Laws, 305 Ark. 143, 145, 806 S.W.2d 1, 2 (1991). Consequently, the order granting nonsuit is not a final order for purposes of appeal.
The case of Cowan v. Schmidle, 312 Ark. 256, 848 S.W.2d 421 (1993), is helpful to illustrate the precise issue before us in the instant appeal. In Cowan, we dismissed the appellants’ appeal because we held that they had no standing to pursue the appeal. The Schmidles, as in the instant case, chose to voluntarily nonsuit their claim against the Cowans pursuant to Ark. R. Civ. P. 41(a). Subsequently, the Cowans appealed various rulings of the trial court. We determined that the Cowans were seeking an unauthorized interlocutory appeal because, as a result of the appellees’ nonsuit, the case was resolved in the Cowans’ favor. We noted that while rulings on the merits may be appealable if there is eventually a judgment against the Cowans, at the point the case was nonsuited, the Cowans actually prevailed and had no standing to appeal. In fact, there was no decision prejudicial to them on the merits of the underlying claim. Accordingly, we dismissed the portion of the appeal relating the merits of the case. Cowan, 312 Ark. at 258, 848 S.W.2d at 422-23.
Similarly, the circuit court honored Hillier’s absolute right to voluntarily nonsuit his claim against Beverly. That order, dismissing the case without prejudice, leaves Hillier free to refile his suit against Beverly. Accordingly, at this time, there is no adjudication on the merits to review on appeal. Should Hillier refile the suit and the trial court reach the merits of the case, these issues may be ripe for appeal. In the meantime, we lack jurisdiction over the instant appeal because the circuit court’s May 12, 1999, order granting a nonsuit and dismissing appellee’s complaint without prejudice, is not a final, appealable order. Based upon the foregoing, we grant appellee’s motion submitted with the parties’ briefs, and we dismiss the appeal. | [
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CARLETON Harris, Chief Justice.
Andrew Jackson Ross, in 1971, the Treasurer of Pope County, Arkansas, was charged with the crime of embezzlement, the Information alleging 86 transactions of embezzlement of public funds in his custody and possession, it being alleged that the embezzlement occurred between January 5, 1971 and December 10, 1971. On trial, the jury found Ross guilty and his punishment was Fixed at 21 years imprisonment in the Arkansas Department of Correction. From the judgment so entered, Ross brings this appeal. For reversal, four points are relied upon, which we proceed to discuss.
It is first asserted that a confession given by appellant was not freely and voluntarily made and was therefore inadmissible, this contention being based on the premise that the statement was given in consideration of a promise of leniency. We do not agree. Prior to the introduction of appellant’s statement into evidence, a Denno hearing was held in chambers on motion of the State, and at such hearing the Sheriff of the County and Robert H. Williams, original counsel employed by Ross, testified, the latter being called by appellant. Williams testified that he had earlier entered into plea bargaining negotiations with the prosecuting attorney and had received assurances that that official would recommend to the court a 15 year sentence, 10 years being suspended, if Ross should plead guilty to the charges. The attorney testified that he gave this information to his client and was advised by the latter that the agreement was acceptable, and what Ross “wanted to do.” Williams very clearly stated that the agreement was not contingent in any manner upon Ross agreeing to give a confession and, in fact, the lawyer testified that the agreement on the recommendation of time to be served was made before the prosecuting attorney asked for any statement. These were the only witnesses who testified in chambers and the court held the statement to be voluntarily made, commenting further to the effect that in in stances where agreements had been reached between the State and defense, following plea bargaining, and a statement was subsequently given, such statement, under appellant’s theory, no matter how voluntary, would be inadmissible if a defendant decided to retract such confession. In the trial itself, Williams reiterated the testimony given in chambers and further testified that the statement was taken in his office. Mr. Williams, a capable and experienced attorney, was present the entire time and thus was in a position to advise his client during the questioning. The attorney also testified that Ross was entirely willing to make a statement. Appellant relies upon People v. Jones (Ill. App.), 291 N.E. 2d 305, where the court held a confession to be inadmissible, such confession being rendered after an agreement had been reached by the State and defense during plea bargaining. We do not consider the case applicable to the fact situation at hand. In Jones, the testimony on the part of the defendant (which was sharply disputed) reflected that the promise of leniency was conditioned upon that defendant testifying on behalf of the State against another defendant; Jones was told that he could get 40 to 50 years if he went to trial. The opinion further reflects that the statement was taken by an Assistant State’s Attorney in his office, counsel for defendant not being present. It is at once apparent that there is but little, if any, similarity in that case and the one at hand. In addition to the differences in the circumstances surrounding the statement here in issue, it will also be noted that Ross himself does not contend that the agreement reached between the prosecuting attorney and his counsel had any bearing on his willingness to give the statement. Not a single witness testified to such a fact. In fact, appellant admits in his brief that the confession was not given in consideration of the agreement between the State and defense counsel, appellant stating:
“The testimony reflects that an agreement had been reached between the appellant’s attorney and the Prosecuting Attorney and the statement given by the appellant was purely for whatever extrajudicial purposes the Prosecuting Attorney might have had.”
It is true that the attorney said that he would not have permitted the statement to have been made except for the agreement which had already been consummated, but this would seem to be the obvious view of an experienced attorney, and certainly has nothing to do with the voluntariness of the statement. For that matter, in Jones, the court held that the issue of voluntariness was a question for the trial court to determine and stated that a reviewing court will not disturb such a finding unless there is a showing that it is contrary to the manifest weight of the evidence.
Appellant’s brief also devotes a paragraph to an assertion that the confession was inadmissible for the reason that Ross, during interrogation, indicated that he wished to answer no more questions. We find no merit in this contention. In the first place, this issue was not raised in the trial court. The record reflects the following colloquy between the court and defense counsel, as follows:
“THE COURT: Do I understand you to say that there has been a denial of constitutional rights in this case?
MR. MURPHY: No. No. If this is admitted it will be. This is not a voluntary statement.
THE COURT: I see.
MR. MURPHY: Because it was given under a benefit.'1'1 [Our emphasis].
This objection, which has already been thoroughly discussed, was the only objection made to the admission of the confession. It might be added that Ross never declined to answer questions, and indicated only once that he was tired. Certainly, the finding of the Pope County Circuit Court that the confession was voluntarily made is not against the weight of the evidence.
It is next urged that the appellant lacked the mental capacity to voluntarily waive his constitutional rights, and that this lack of mental capacity was made known to the State at the time the confession was obtained. Let it be said at the outset that no objection along this line was made to the trial court at all. As previously stated, the only objection to this confession made to the circuit court was that it was the result of coercion, i.e., made on the basis of the understanding that Ross would receive a lesser sentence. Under our procedure and cases, we do not consider arguments raised for the first time in this court on appeal. See The Travelers Insurance Company v. McCluskey, 252 Ark. 1045, 483 S.W. 2d 179. This actually could preclude consideration of the point, but inasmuch as this is a case of public interest, it might be said that even considering the point to be properly raised here, same is found to be without merit. Appellant’s argument is based on the confession itself and thus is totally dependent upon the statements of Ross. Briefly stated, he related the disorders that he had been told he was suffering from by his doctor. He mentioned shock treatments at sometime in the past, and stated that the doctor, during his most recent confinement, thought he (Ross) was suffering from a brain tumor (but the tests showed normal); the doctor subsequently found a small cancer in his stomach. In subsequent testimony which was offered by the defense in an effort to establish insanity, Dr. Stephen Finch testified that Ross was suffering from chronic brain syndrome, a condition where brain cells die because of lack of blood supply. The doctor said that Ross suffered from a memory loss, more particularly of recent events, and that he would say that appellant’s brain had deteriorated because of arteriosclerosis, to the age of an 80-year-old man. There was other medical testimony on both sides, but no testimony by any physician was offered that Ross was mentally incompetent to make the statement. The testimony of appellant’s physicians was simply an effort to convince the jury that Ross was not guilty by reason of insanity.
The basis of the allegation that a lack of mental capacity was made known to the State at the time the confession was obtained is predicated simply upon a few statements that appellant made to the prosecuting attorney during interrogation. For one, when asked about the alleged giving of money to his secretary for extra work, Ross replied that he “wouldn’t be capable of remembering what happened back then because I underwent shock treatments and it has kinda affected my memory a little bit.” For another, appellant stated that his doctor had advised him that he would not be able to be present on the date set for trial and should not even engage in telephone conversations. It is argued that after these observations by Ross, the prosecuting attorney should have ceased his questioning, but that instead, “Incredibly the inquisition continued for quite some length of time. ” We cannot agree that the matters mentioned reflect a lack of mental capacity to give the statement. Appellant appeared fully aware of the questions being propounded, and it is interesting to note that when asked if he had converted to his own use about $295,040.61, appellant responded, “ ’94,1 believe.” He also explained that at the end of each month, to make his bank statement balance with his books, he “would take from one bank and put in the other.” When asked how much he would take from the bank , he answered, “Just whatever amount I used that month I would take from the other bank and then before the end of the month — at the end of the month I would put that back.” Let it also be remembered that his attorney was present with him for the purpose of seeing that appellant’s rights were not violated. The interrogation was conducted in a conversational manner and there was no harassment or intimidation of the witness. We find no merit in appellant’s second point.
It is next contended that the introduction of evidence of alleged embezzlement occurring prior to 1971, and for which no criminal charge had been filed, was prejudicial and requires a reversal. Wendell Riddell, an auditor for the Division of Local Affairs Audit, employed by the Audit Division for about 12 years, testified that he recovered 85 checks totaling $41,570.00 for the year 1971 (this was the amount set out in the Information filed against Ross), and he asked appellant if he objected to telling the amount that had been taken. Ross responded that the amount of the shortage would be close to $300,000.00. Subsequently, appellant, according to the auditor, stated that they would have to go back over a period of years to determine the proper amount. The auditor testified that the total shortage amounted to $295,040.61. Counsel for appellant objected to “anything which happened before 1971,” such objection being overruled, the court holding it admissible as testimony concerning method of operations. Counsel never did state why he objected to testimony concerning shortages before 1971, except that on one occasion he said that he objected “if this is trying to get anything in in the form of a confession or admission.” Subsequently, counsel asked that the testimony be stricken, stating, “The Information is for $41,000.” We find no merit in the contention. While evidence of other offenses is not admissible where the only purpose is to portray a defendant as a person of bad character, or addicted to crime, such evidence is properly received, inter alia, to show mode or method of operations, common scheme or plan, design, habits, practices, etc. See Baker v. State, 4 Ark. 56; Cain v. State, 149 Ark. 616, 233 S.W. 779; and Tolbert v. State, 244 Ark. 1067, 428 S.W. 2d 264. See also 22A CJS Criminal Law § 688 where it stated:
“Proper evidence which proves or tends to prove a common scheme, plan, design, or system of criminal action will not be excluded because it also shows the commission of another crime by accused. Broadly speaking, evidence of other crimes than that charged is competent and admissible when it tends to establish a common scheme, plan, system, design, or course of conduct.”
It might be added that appellant requested no instruction advising the jury that the testimony was admissible only for the purposes herein mentioned.
Finally, it is asserted that the trial court erred in refusing to declare a mistrial when the appellant discovered a member of the jury was a justice of the peace. Formerly, by statute (Ark. Stat. Ann. § 39-230 [Repl. 1962]), a justice of the peace could be peremptorily challenged, but such statute was repealed by Section 30 of Act 568 of 1969. Of course, there was no statutory disqualification even to begin with, and the juror was not challenged on voir dire; nor is there any indication that his presence as a member of the jury prejudiced the rights of the appellant. Under these circumstances, there was no abuse of discretion in refusing to declare a mistrial.
Finding no reversible error, the judgment is affirmed.
It is so ordered.
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774.
While not entirely clear, the record indicates that Williams was the attorney for the Bank of Russellville, one of the depositories for County funds, and this apparently occasioned his withdrawal.
In Jones, the trial court held the statement to be involuntary.
The treasurer banked with the Bank of Russellville and the Peoples Bank. | [
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TOM Glaze, Justice.
This court accepted jurisdiction of the appeal tice. presents a significant issue needing clarification or development of the law and also requires our interpretation of an act of the General Assembly. Ark. Sup. Ct. R. 1-2 (b)(5), (6) (2000). Specifically, we are asked whether Ark. Code Ann. § 16-65-121 (Supp. 1999) or Ark. R. Civ. P. 58 controls the facts in this case.
The facts are undisputed. Charles and Sue Price were married and had three sons. In 1977, they divorced and remarried; they later filed again for divorce in 1997. The second divorce proceeding is in issue here. On July 23, 1997, the chancellor announced from the bench that Sue Price be awarded the divorce, and at the same proceeding, the parties’ stipulated agreement concerning property, debts, fees, and costs, was read into the record and acknowledged by both of them. On August 8, 1997, Charles was killed in a car accident before the parties’ divorce decree was entered. In fact, the parties’ decree was not filed of record until June 19, 1998. See Price v. Price, 337 Ark. 372, 990 S.W.2d 514 (1999) (per curiam). On August 8, 1998, Sue Price filed a petition in the Miller County Probate Court, seeking to be appointed administratrix of Charles’s estate and asserting she was entitled to the appointment because she was Charles’s surviving spouse. The Prices’ adult sons contested Sue’s appointment, stating she was not married to Charles at the time of his death. They claimed that Sue had been awarded a final divorce on July 23, 1997, and therefore was not Charles’s surviving spouse when he was killed on August 8, 1997. The probate judge ruled that, for the purpose of this proceeding, the Prices’ divorce was not final and in effect because Charles died before the Prices’ decree had been entered. As a consequence, the judge determined the Prices were still married when Charles was killed. Even so, the judge denied Sue’s request to be administratrix, and instead appointed one of the sons, Kenneth Price, as administrator. The Prices’ sons, Rodney, Kenneth, and Randy (“the sons”), appeal the judge’s ruling finding Sue to be Charles’s surviving spouse. They further claim that because she is not Charles’s surviving spouse, she is not entitled to share in his estate. Sue does not challenge or appeal Kenneth’s appointment as administrator.
In their appeal, the sons rely on Act 98, § 1 of 1989 (3rd Ex. Sess.), codified at Ark. Code Ann. § 16-65-121 (Supp. 1999), which, in relevant part, provides, “All judgments, orders, and decrees . . . are effective as to all parties of record from the date rendered and not from the date of entry of record.” (Emphasis added.) Act 98, § 2 of 1989 (3rd Ex. Sess.), codified at Ark. Code Ann. § 16-67-101 (Supp. 1999), provides that the “time for filing a notice of appeal shall commence upon the filing and entry of record of the judgment, order, or decree pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure.” The sons reason that, under these 1989 statutory provisions, the chancellor’s oral pronouncement rendering Sue a divorce on July 23, 1997, was effective on that date.
Sue, on the other hand, relies on Ark. R. Civ. P. 58, which in pertinent part reads as follows: “Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2.” (Emphasis added.) Administrative Order No. 2 provides that a judgment, decree, or order is entered when so stamped or marked by the clerk. Sue argues that, under Rule 58 and Administrative Order No. 2, the chancellor’s pronouncement awarding her a divorce on July 23, 1997, was not effective on that date, since no separate decree or order had been filed and entered before Charles’s death. Thus, Sue asserts she is entitled to share in Charles’s estate as his surviving spouse.
Although our court has never had the occasion to consider § 16-65-121, we have interpreted this court’s Rule 58 and Administrative Order No. 2 in a situation much like the one now before us. In Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), the chancellor heard a divorce proceeding on October 5, 1984, between Terry and Annie Thacker, and at the end of the hearing, the chancellor wrote in his docket book, “decree — a little unusual but it may work.” The chancellor’s concern apparently was that the father, Terry, was to have custody of the couple’s daughter and Annie was to have custody of their son. Two days later, and before the Thackers’s divorce decree was finally filed with the court clerk, Annie and Carroll Standridge married. After their marriage, Carroll was killed in a motorcycle accident. Annie, as Carroll’s surviving spouse, was appointed administratrix of Carroll’s estate. However, Carroll’s former wife, Sharon, contested Annie’s appointment, contending Annie’s marriage to Carroll was invalid because, at the time of the marriage, Annie’s divorce from Terry was not final, since a separate divorce decree had not been filed as required by Ark. R. Civ. P. 58. In a 4-3 decision, this court held in Sharon’s favor. The Standridge court held that a judgment or decree is not effective until it is entered as provided in Rule 58 and Administrative Order No. 2 and further concluded that an announcement of the divorce from the bench is insufficient to effect the divorce. The court explained that the purpose of Rule 58 was to provide a definite point at which a judgment, be it a decree of divorce or other final judicial act, becomes effective. This court’s interpretation of Rule 58 in Standridge has been followed repeatedly by our court and the court of appeals. Shackelford v. Ark. Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997); Clayton v. State, 321 Ark. 217, 900 S.W.2d 537 (1995); General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994); Nance v. State, 318 Ark. 758, 318 S.W.2d 758 (1994); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); A-1 Bonding v. State, 64 Ark. App. 135, 984 S.W.2d 29 (1998); Morrell v. Morrell, 48 Ark. App. 54, 889 S.W.2d 772 (1994); Brown v. Imboden, 28 Ark. App. 127, 771 S.W.2d 312 (1989).
The sons are well aware of the Standridge decision and its progeny, and while they do not ask us to overturn those decisions, they submit the General Assembly essentially did so seven months after Standridge when it enacted § 16-65-121. Quoting richly from the dissenting opinion in Standridge, the sons submit that § 16-65-121 merely reaffirmed the original meaning of Rule 58 so as to assure any citizen that a decision made in open court by a judge would finally decide the merits of his claim without waiting for the filing and entering of a separate decree, judgment, or order. Unquestionably, this argument presents us with the conflict between this court’s Rule 58, as it was interpreted in Standridge, and the General Assembly’s enactment of § 16-65-121.
In State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), the court was confronted with a situation where a conflict arose between rules established by this court and legislation enacted by the General Assembly. The court set out the following analysis and approach as to how it would deal with such conflicts: “To protect what we hold inviolate we now declare that we will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule’s primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.”
An exception to the foregoing rule exists when the statutory rule is based upon a fixed public policy which has been legislatively or constitutionally adopted and has as its basis something other than court administration. See Citizens for a Safer Carroll County v. Epley, 338 Ark. 61, 991 S.W.2d 562 (1999) (where the General Assembly’s statute required a shorter appeal time than the court’s procedural rule, the court held the statute controlling because it was based on the strong public policy that local option election matters should be advanced).
As generally discussed above, this court has recognized that Rule 58 is a matter pertaining to court administration whereby it provides a definite point at which a judgment becomes effective. Establishing that point to be the moment at which the court’s written precedent is filed can eliminate or at least reduce disputes between litigants over what a trial court’s oral decision in open court entailed. Such disputes inevitably delay the filing of appeals, which is at odds with this court’s procedural objective of moving appeals expeditiously. Cf. Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982).
In conclusion, we hold that Rule 58, not § 16-65-121, controls the facts in this case and that the rule effectively supersedes that statute. Therefore, we affirm the lower court’s decision.
Sue Price untimely filed an appeal from the divorce proceeding, but when she filed a motion for rule on the clerk, the court denied her request. Citing Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984), Sue posited that the death of a party nullifies the validity of a subsequent divorce decree. While we agreed, we further recognized that it is not necessary to appeal from a void order because it never became effective, and a void order is subject to collateral attack. This probate proceeding, of course, does collaterally attack the Prices’ July 23, 1997, divorce proceeding.
Charles’s estate was established to pursue a wrongful death lawsuit and to administer his assets, debts, and financial affairs
The record reflects “the son” was the appropriate person to be administrator, and since Kenneth Price was the only son to apply for appointment, we assume he was appointed administrator even though Rodney is the only Arkansas resident. No real issue is raised regarding the appointment of the administrator, and we assume the probate judge will clarify this point at some stage of the proceeding
An apparent conflict between § 16-65-121 and Rule 58 was footnoted in McCarther v. Green, 49 Ark. App. 42, 895 S.W.2d 562 (1995), but the court of appeals did not address the issue because, while the trial court’s ruling was on-the record, it was not rendered in open court. | [
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Frank Holt, Justice.
The appellants were found guilty of murder in the first degree by a jury which assessed their punishment at life imprisonment in the Department of Correction. We first consider Russey’s appeal. He contends for reversal that it was error to admit his confession into evidence because it was secured by coercion and duress and, therefore, was involuntary. He also argues that the state failed to produce all material witnesses connected with the asserted involuntary confession.
Appellant Russey was arrested on January 2, 1974, at 3 p.m. on a burglary charge. At the Demo hearing Russey testified that later that evening, detectives Sparr and Roun-savall took him from the jail to locate the stolen property. Russey testified that afterwards Rounsavall and Sparr took him to a cemetery and physically beat him. According to Russey, one of the officers put a pistol in his mouth and told him “he had just shot a boy over in that cemetery a couple of days ago, and asked me did I want to be the next one?” Appellant testified that he was told to cooperate with them and was told that he killed Carter. Russey further testified that a tooth was loosened from a blow administered in the cemetery and Sparr, in the presence of Rounsavall, knocked it out the next day before he signed a confession. Russey was 18 years old and had a 10th grade education. He testified he was terrified from the first day’s experience and did not relate the statement which Sparr brought in for him to sign. Russey testified that during this time he was not allowed to use the phone and was unable to secure an attorney until January 5, 1974. On that date he retracted his statement.
Detectives Best and Vandiver were the only police officers who testified at the Denno hearing. They testified no other officer was present at the time appellant gave his statement dated January 3, at 6:40 p.m. They saw no swelling of appellant’s face and appellant did not complain about any physical abuse. To their knowledge, no threats, coercion or physical abuse ever occurred. Both officers testified that appellant was given the Siiranda warning, fully understood his rights and waived them as evidenced by his signing a waiver of rights form preceding his statement. At appellant’s request, Best wrote the statement which Russey then signed. Best and Vandiver testified that Russey did not request to use the phone or talk to anyone. Best was unaware that Sparr and Rounsavall took appellant from the jail in a patrol car the night before appellant was interrogated by Best in Van-diver’s presence.
At the Denno hearing, the trial court ruled the statement voluntary without the state producing either Sparr or Roun-savall as witnesses. At trial, however, after the statement was read to the jury, Sparr was called as a rebuttal witness. Rounsavall never testified. The sole explanation for his absence was that he was off duty. Suffice it to say that it is manifest that the state did not meet the burden of proof as is required in Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973). There we held:
Whenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.
In the case at bar, the accused offered testimony that his confession was induced by violence, threats and coercion by the officers. Two of these officers, Sparr and Rounsavall, did not testify at the Denno hearing. Therefore, as to them, his testimony stands uncontradicted. The burden was upon the state to produce these material witnesses or give adequate explanation for their absence. Sparr testified at the trial subsequent to the Demo hearing. However, the trial court must first find at a Demo hearing that a statement is voluntary before it is admissible. Ark. Stat. Ann. § 43-2105 (Supp. 1973). Rounsavall, whom appellant Russey said he particularly feared, never testified. The fact that he was “off duty” the day of the trial is not “adequate explanation.” Smith v. State, supra.
The state “notes” that appellant did not object to the absence of Rounsavall. However, appellant’s objection to the confession as being involuntary was sufficient. In Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 (1974), we said:
Nowhere in Smith does it appear that, in making an objection based upon a contention the state has failed to show a statement is involuntary, a defendant must point out, in precise words, that a material witness was not called.
Consequently, in the case at bar, it was necessary in determining the voluntariness of the confession that all material witnesses be presented or an “adequate explanation” of absence be given. Since neither occurred, we must hold it was prejudicial error to admit his confession into evidence.
We next consider Way’s appeal. He contends the court erred in allowing three photographs into evidence which were unnecessary since the identification of the deceased was not in issue and the photographs served no purpose other than inflaming the minds of the jurors. Four photographs-were excluded by the trial court. One of those admitted showed the victim where he fell in the living quarters of the store after being shot. The other two photographs depicted his wounds.
In Milam v. State, 253 Ark. 651, 488 S.W. 2d 16 (1972), we said:
Photographs may be introduced to describe and identify the premises, to establish the corpus delicti, to disclose the environment of the crime, and to corroborate testimony. **** When photographs are otherwise properly admitted it is not a valid objection that they tend to prejudice the jury.
The photograph of the victim on the floor corroborated testimony that the victim ran from his assailant in the business area of the building into the living area where he was found fatally wounded. The two other photographs supported the medical testimony as to the nature, location and extent of the wounds. We hold there was no abuse of discretion by the trial court.
Neither can we agree with appellant Way that the trial court erred in denying his motion for a directed verdict. Two witnesses at the scene of the crime could not positively identify Russey or Way. However, one testified that appellants “looked like the boys.” It is argued by Way that the evidence is insufficient because Johnny Stewart, a witness for the state, was an accomplice as a matter of law and the court erred in not so ruling and refusing their instruction to that effect. The court submitted the issue to the jury that Johnny Stewart’s interest and participation was a question of fact and not one of law. Stewart, 15 years of age, testified that he knew the appellants. On the day of the robbery-murder, he first saw them in a pool hall and rode around with them and a Ricky Griffin. Russey, who was driving, stopped the car at Carter’s Grocery. Russey and Way got out of the car, each holding a pistol. Shortly they returned with the pistols and a brown paper sack. He did not hear any shots, see any money and no one gave him any. No one discussed a robbery with him and he was driven home. His version was not tested by cross-examination.
In Froman and Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960), we quoted with approval:
The burden is on the defendant to show that the witness for the state is an accomplice. This is usually determined by the court as a question of law. But if the evidence is conflicting as to the participation of the witness in the commission of the crime, the matter should be left to the jury under proper instructions as to intent and participation.
In the case at bar, we agree with the trial court that Stewart was not an accomplice as a matter of law and the court, by correct instructions, properly submitted the issue to the jury as a fact question. To the same effect are Austin v. State, 254 Ark. 496, 494 S.W. 2d 472 (1972); Satterfield v. State, 245 Ark. 337, 432 S.W.2d 472 (1968); and Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918). Furthermore, in Fields v. State, 213 Ark. 899, 214 S.W. 2d 230 (1949), we said:
The mere passive failure to disclose the commission of the crime would not make one an accessory under our statute. There must be some affirmative act tending toward the concealment of its commission or a refusal to give knowledge of the commission of the crime, when same is sought for by the officials of the person having such knowledge.
See also Satterfield v. State, supra. In the case at bar, it appears that Stewart never, by any affirmative act, sought to conceal the commission of the crime.
Appellant Way further contends the trial court erred in denying appellant’s motion for a mistrial. The prosecutor, while cross-examining Russey, referred to Way being in jail at the same time as Russey. Way argues that a “broad field of speculation as to his character and possibly his criminal record” was presented to the jury. We agree with the state that this contention is speculative. A motion for a mistrial is “an extraordinary action and this motion should only be granted where it is obvious that any possible prejudice cannot be removed by an admonition. "Hathcock v. State, 256 Ark. 707, 510 S.W. 2d 276 (1974). In the case at bar there was no request for any admonition. Furthermore, it appears that no prejudice could result since there was no objection by appellant when Detective Best testified that the appellants were incarcerated at the same time during the investigation.
Neither can we agree that the trial court erred in refusing to instruct the jury that appellant Russey, a co-defendant, is an accomplice as a matter of law. When this instruction was offered by appellant Way and its propriety was being dis-cusssed, his then trial counsel stated that Russey’s involvement “would be a question of fact for the jury.” Moreover, Russey testified and denied complicity in the alleged offense. He, also, offered an alibi which was corroborated by his employer.
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RAY THORNTON, Justice.
Moe Studio, Inc., brings this appeal icpetition e. review of the decision of the Arkansas Court of Appeals , alleging that the court erred in reversing and remanding its judgment against Foundation Telecommuni cations, Inc., on the grounds that the election of the special judge who heard the case did not comply with the requirements of Arkansas Constitution article 7, section 21. When this court grants a petition to review a case decided by the court of appeals, we review the case as if it was originally filed in the supreme court. McKay v. McKay, 340 Ark. 171, 5 S.W. 3d 525 (2000). Because we agree with Moe Studio that Foundation failed to meet its burden to overcome the presumption of validity that accompanies the election of a special judge, we affirm the trial court.
Moe Studio brought suit against Foundation in municipal court and prevailed; Foundation appealed that decision. The case was tried de novo in circuit court, and Moe Studio again prevailed. Foundation appealed that decision to the court of appeals alleging three points on appeal: (1) that the special judge hearing the case was not properly elected to hear the case and therefore the judgment rendered was void; (2) that the trial court erred in finding that Foundation’s employee had apparent authority to bind the corporation to enter into an oral contract; and (3) that the trial court committed error in finding that substantial evidence supported the determination that a valid oral contract existed. The court of appeals held that the judgment rendered was void and dismissed the appeal without reaching the remaining allegations of error.
This case was tried to the bench in Benton County Circuit Court on January 11, 1999. Division I Circuit Judge Tom Keith was not present on that day; instead, local attorney Andrew Miller, as special judge, presided over the trial without objection from appellant during the course of the proceedings. At the conclusion of the trial, Special Judge Miller found in favor of Moe Studio and awarded $4715 in damages for work completed. He stated from the bench that Rhonda Roper, an employee of Foundation, possessed the apparent authority to bind the company and that a valid contract was entered into by the parties with the consent of George Livergood, the president of Foundation. Miller did not accept Foundation’s contention that Moe Studio was engaging in a proposal process and producing work on speculation to be considered along with other bidders for the job of preparing sales brochure packets for Foundation; rather, he found that a valid contract was formed by offer and acceptance with the price subject to change based upon the requests of the client.
An order was rendered and provided to the attorneys with the understanding that it would be entered absent objection by either party. Foundation’s counsel responded in a letter to Judge Keith, alleging that the special judge did not meet the requirements of Ark. Code Ann. § 6-10-115 (1999), which provides for trial by temporary judge by stipulation of the parties, and objecting to the entry of his order. In a second letter, counsel for Foundation alleged that she had not been aware that the presiding judge was a special judge and would have requested a continuance had she known. Moe Studio responded by letter that Foundation’s counsel had been apprised of the situation and that a special judge would be hearing the case and noted that no objection had been made until after the verdict was rendered. No pleading or motion was filed, and no ruling was made by Judge Keith on the issue raised in Foundation’s correspondence. The judgment was signed and entered on January 28, 1999.
On appeal, Foundation contended that the circuit court failed to follow the requirements of article 7, section 21, of the Arkansas Constitution, and thus, the special judge was without judicial authority and his actions were coram non judice. Moe Studio responded that the issue was not preserved for appellate review because Foundation had failed to raise the objection below. The court of appeals held that because the record on appeal did not reflect that an election was held, there could be no objection to the election procedure, and reversed the judgment and remanded the case for a new trial.
Article 7, section 21, of the Arkansas Constitution, providing for the election of special judges, and section 22, permitting circuit judges to temporarily hold court for each other, are the modes expressly set out and are exclusive of all other methods of temporarily replacing a circuit judge. Any statute providing for a different method is unconstitutional. Wessett Bros. Drill. v. Crossett Sch. Dist., No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985). The constitution provides that a special circuit judge or chancellor be elected by the attorneys in attendance on the court and that the proceedings be entered upon the record at large. Abercrombie v. Green, 235 Ark. 776, 362 S.W.2d 12 (1962). If the election was not in the manner prescribed by law, the special judge had no judicial power, his acts were coram non judice, and, on direct attack, the decree must be set aside as void and the cause remanded for trial as if it had never been tried. Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974). It is not required that the reasons for the election be stated upon the record of the proceedings for the election of a special judge under this constitutional provision and the presumption will be indulged that the facts that make the election necessary exist. Id.
The election of a special judge is presumed to be valid, Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997), and, under the law, that election is impervious to attack unless the facts that would defeat the election are recited in the record. Metal Proc. Inc. v. Plastic & Recon. Assoc., Ltd., 287 Ark. 100, 687 S.W.2d 87 (1985). It is the appellant’s burden to produce a record showing that an attack on the election was made in the trial court, Travis, supra, and it is anticipated that the trial court, by the regular circuit judge, will make a finding whether the special judge was duly elected. Metal Proc. Inc., supra. Because the record is devoid of any facts that would defeat the election, and because appellant failed to raise this issue to the trial court in a proper pleading and obtain a ruling upon the issue, we must first determine whether the question is preserved for appeal.
An issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal. Even a constitutional issue must be raised at trial in order to preserve the issue for appeal. Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994). A defendant may not wait until the outcome of a case to bring an error to the trial court’s attention. Id. Furthermore, parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of their objections as presented at trial. Hinkston v. State, 340 Ark. 530, 10 S.W. 3d 906 (2000). Even if we were to accept Foundation’s correspondence to the judge as a valid objection, notwithstanding that there was no ruling on the issue, the objection raised to the trial court did not point out the reasons it believed the procedure was defective. We note further that the letter only contended that the selection of the special judge did not meet the statutory requirements of Ark. Code Ann. § 6-10-115. Only on appeal has Foundation sought to raise the issue of compliance with the constitutional provisions for conducting an election.
On appeal the burden is placed on the challenger to show that he properly challenged and offered specific facts and reasons why the election was void. The proceedings of the circuit court are presumed to be regular, unless the contrary is made to appear upon the record of the cause in which error is alleged. Sweeptzer v. Gaines, 19 Ark. 96 (1857). “Nothing short of the proper record to the contrary can rebut the violent presumption, that the regular Judge, in the midst of his regular term, would not permit a mere usurper to take the bench and presume to administer justice to his Court.” Id. In order to present any question of that sort for our review here, the power and authority of the special judge must have been questioned in the court below, and the grounds of the objection stated in the record. Nothing of this sort appears in this record. See Fernwood Mining Co. v. Pluna, 136 Ark. 107, 205 S.W.2d 822 (1918) (citing Blagg v. Fry, 105 Ark. 356, 151 S.W. 699 (1912); Caldwell’s Adm’r. v. Bell, 6 Ark. 227 (1841); and Caldwell v. Bell & Graham, 3 Ark. 419 (1840)). Rather than merely writing a letter questioning the authority of a special judge, on the basis of allegations unsupported by the record they have presented, the record might have been developed by filing the appropriate pleadings and giving the regular circuit judge the opportunity to review the proceedings which occurred before this case was called. This procedure would not only provide the trial court an opportunity to consider the challenge, it would also provide us an opportunity to reach the issue. To allow Foundation to challenge the selection of a judge on one ground below, and then to pursue a different objection on appeal would defeat not only the presumption in favor of such elections but also our long-standing rule that issues must be preserved for appeal and that the burden is upon the movant to bring forth a record to support his contentions on appeal. Therefore, we hold that Foundation has failed to meet its burden to challenge the validity of the election of the special judge and turn now to the remaining points on appeal regarding the merits of his decision.
Foundation contends that the trial court erred in holding that an employee of the company had apparent authority to bind the corporation or to enter into a contract with Moe Studio on behalf of the corporation. In bench trials, the standard of review on appeal is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Scheuck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Wade v. Arkansas Dep’t. of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999).
Apparent authority of an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; or such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. General Motors Acc. Corp. v. Salter, 172 Ark. 691, 290 S.W. 584 (1927). The principal is bound by all the acts of his agent coming within the apparent scope of the authority conferred upon him. Crossett Lumber Co. v. Fowler, 137 Ark. 418, 208 S.W. 786 (1919). Every delegation of authority, whether it be general or special, express or implied, unless its extent be otherwise expressly limited by the same instrument conferring it, carries with it as an incident, the power to do all those things which are necessary, proper, usual, and reasonable to be done in order to effectuate the purpose for which it was created. Brown v. Brown, 96 Ark. 456, 132 S.W. 220 (1910). When the evidence as to the nature and extent of an agent’s authority is in conflict, it is a question of fact for the fact-finder. Southland Mobile Home Corp. v. Chyrchel, 255 Ark. 366, 500 S.W.2d 778 (1973). An agency can be established by circumstances, and any evidence tending to establish agency is admissible. Id.
The evidence presented at trial was that Mark Moesta, general manager of Moe Studio, met with three employees of Foundation, including Rhonda Roper, to discuss designing a sales packet on July 17, 1997. The company president appeared for a brief introduction, then they were provided with a copy of Foundation’s current sales packet, samples of what they wanted to include in their new packet, and specific instructions for the copy, cover, and interior of the packet. Moesta was told that Roper would be his contact person in the company and were given an October 1st deadline and told to “get to work.” On their way out, the company president, Mr. Livergood, stopped Moesta and said, “You guys are under the gun, so let’s get to work.” Moe Studio’s designers started work on the project immediately and Moesta prepared a pricing sheet outlining the cost of the project based on their requests, which he faxed to Roper on August 12, 1997. The following day, Roper requested that the studio find a less expensive method of obtaining photo graphs for the pamphlets and resubmit the pricing sheet. Two weeks later Moesta submitted new photography samples to Roper by fax, then had a second meeting at Foundation with Roper on August 29th to view sample pages of the layout design. Roper requested specific changes to the designs, and, over the next four weeks, selected photographs from those submitted by Moesta. Roper also sketched out basic design ideas, or “thumbnails,” and made numerous and explicit changes to the samples provided.
On September 29th, Moesta faxed to Roper a revised price sheet showing the photography changes and other costs associated with the new design. Moesta also testified that Roper told him around that time not to worry about the October 1st deadline, just to get them mock-ups of the packet as soon as possible. At this point, according to Moe Studio’s evidence, the work on the project was ninety-five percent complete and that all that remained was the final printing of the color brochures. Then, on October 3, 1997, Roper called Moesta and told him that they were pulling Moe Studio off the job and were going to look for another contractor to do the job. Moesta responded that he would be sending a bill for the work completed and did so on November 4, 1997. The final bill, less a five percent reduction for the uncompleted work, was $4,715.
On appeal, this court defers to the trial court’s credibility assessments. McKay, supra. Sufficient evidence exists in the record to support that the trial judge’s findings were not clearly erroneous or against the preponderance of the evidence. The evidence presented by Moe Studios supports the finding that Roper acted with the apparent authority from the principal, Mr. Liver-good, to enter into an oral contract with Moe Studio. Notwithstanding Foundation’s evidence that Moesta was told that only the company president could authorize the expenditure of funds, given that Moe Studio’s only communication was through Roper, who edited, revised, and reviewed all work done and made specific requests with regard to the project, it was reasonable for Moe Studio to conclude that she was the authority on this project. Whether an agent is acting within the scope of his actual or apparent authority is a question of fact for the fact-finder to determine. Henry v. Gaines-Derden Enters. Inc., 314 Ark. 542, 863 S.W.2d 828 (1993). As the fact-finder, it was within the trial judge’s province to believe or disbelieve the testimony of any witness. Schueck, supra. We cannot agree that the judge’s decision that Roper had authority to do those things necessary, proper, usual, and reasonable to achieve the finished project was clearly erroneous, or that it was clearly beyond the preponderance of the evidence to determine that Roper possessed such authority as a reasonably prudent person, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. General Motors, supra. Because we cannot agree with Foundation’s contention that the special judge’s finding as to the apparent authority of their employee was clearly erroneous, we affirm the decision below.
In the final point on appeal, Foundation takes issue with the trial court’s finding that a valid contract was created between the parties, notwithstanding the scope of Roper’s authority. Foundation argues that Moe Studio was asked to prepare a proposal for the project, along with other bidders, and that they were not selected for the job because the quality of their “spec” work was unacceptable. Moe Studio denied that they were ever told that other bidders were being considered and argued that the level of detail and effort expended on the project, together with the extensive cooperation with the client and the direction of the company president to “get to work,” clearly suggested to them that an oral contract was in place for them to do the job. While Foundation cited the price lists submitted to them bore captions suggesting that they were only quotes on the proposed cost of completing the project, Moesta testified that this was simply a form that he used for convenience. While the price of the job remained nearly consistent in each price list, Moesta acknowledged price changes based upon Foundations’s requests for revisions, but testified that Foundation had agreed in July to pay what it would cost to prepare the brochures. An early estimate of cost on August 12 was $5430, not including printing charges, compared with the final bill of $4715.
The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Gentry v. Hanover Ins. Co., 284 F. Supp. 626 (D.C. Ark. 1968) (died in Hunt v. McIlroy Bank & Trust, 2 Ark. App. 87, 616 S.W.2d 759 (1981). See also Southern Surety Co. v. Phillips, 181 Ark. 14, 24 S.W.2d 870 (1930)). We keep in mind two legal principles when deciding whether a valid contract was entered into: (1) A court cannot make a contract for the parties but can only construe and enforce the contract which they have made; and if there is no meeting of the minds, there is no contract; and (2) It is well settled that in order to make a contract there must be a meeting of the minds as to all terms. Hunt, supra (citing Hanna v. Johnson, 233 Ark. 409, 34 S.W.2d 846 (1961); Irvin v. Brown Paper Mills Co., 52 F. Supp. 43 (D.C. Ark. 1943), rev’d. on other grounds, 146 F.2d 232 (8th Cir. 1944)).
We have previously held that an uncertain agreement may be supplemented by subsequent acts, agreements, or declarations of the parties as to make it certain and valid. Swafford Ice Cream v. Sealtest Foods, 252 Ark. 1182, 483 S.W.2d 202 (1972). The acts of practical construction placed upon a contract by the parties are binding and maybe resorted to relieve it from doubt and uncertainty. The objection of indefiniteness may be obviated by performance and acceptance of performance. Id. Such is the case here. Based upon the level of cooperation with Foundation and the extensive revisions that agreed to between Roper and Moesta, it was reasonable for Moe Studios to conclude that Foundation had engaged them to prepare a sales brochure and that they would be paid for their work. We cannot agree with Foundation’s assertion that the trial court’s finding that a contract “evolved over a period of time to a meeting of the minds, ... created by offer and acceptance” was clearly erroneous. Therefore, we affirm the trial court on this point as well.
Affirmed.
Foundation Telecom., Inc. v. Moe Studio, Inc., 69 Ark. App. 20, 9 S.W. 3d 542 (2000). | [
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Conley Byrd, Justice.
At issue here is whether appellant Arkansas Railway Equipment Company is entitled to a use tax exemption pursuant to Ark. Stat. Ann. § 84-3106 (D) (2) (Supp. 1973), upon the purchase of two diesel locomotive cranes and a 72 inch Ohio magnet. The trial court denied appellant’s claimed exemption on the basis that it had failed to clearly show that:
“A. Such equipment is used in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce.
“B. Such equipment is not transportation equipment.”
To sustain the action of the trial court, appellee Richard R. Heath, Director, Department of Finance and Administration, State of Arkansas, contends:
1. The appellant’s operation is not “manufacturing.” It is commonly understood as, and falls precisely within the definition of a “salvage” operation. Nor does the appellant assemble or fabricate a finished product from “raw or semi-finished materials.”
2. The machinery and equipment is not used “directly” within a manufacturing process. The word “directly” means that the machine must fabricate or assemble a new product from raw or semi-fnished materials. Since there are no raw or semi-finished materials, only an old railroad tank car, used in the appellants’ operation, it is impossible for the appellant to meet this statutory requirement.
3. Additionally, the cranes and magnet are used only to “transport” the metal tank from one work site to another. The Arkansas Compensating Tax Act specifically excludes such equipment from use tax exemption.
The record shows that appellant through its processing of old railroad tank cars makes and sells culverts fabricated therefrom in competition with manufacturers of corrugated metal culverts. The nature of appellants’ business operations and the facts and circumstances which gave rise to this litigation were stipulated in the trial court as follows:
“a. In late 1970, the American Association of Railroads issued a ruling, effective January 1, 1971, requiring its members to remove from interchange service all railroad cars in excess of fifty years of age. This ruling went on to provide that, effective January 1, 1972, all railroad cars forty-nine and fifty years of age would be similarly retired, and each subsequent January 1, two more years of cars would be removed from service, until no cars in excess of forty years of age would remain in service. One result of the above ruling was to place a substantial number of railroad cars on the market for sale and the most significant purchasers of such railroad cars were salvage companies such as Arkansas Railway Equipment Company (hereinafter ‘Plaintiff’). In early 1971, Plaintiff purchased 1,500 railroad tank cabs. At that time, Plaintiff was one of the few operations in the United States with sufficient tract capacity to permit the storage of such a volume purchase. All of the 1,500 tank cars so purchased were being retired from service pursuant to the above-mentioned ruling of the American Association of Railroads.
b. The tanks which are mounted on such railroad tank cars have capacities of from 8,000 to 10,000 gallons and are of four basic types:
(1) insulated;
(2) insulated with heating coils;
(3) non4nsulated; and
(4) non-insulated with heating coils.
For the most part, the tank cars purchased by Plaintiff were of types (2) and (3). The heating coils are a network of tubing inside the tank and are used to carry steam to soften heavy petroleum products in order to drain such products from the tanks. The insulation, of course, is for the purpose of heat retention in the draining process. Examples of such petroleum products include asphalt, paraffin and wax.
c. The most significant portion of Plaintiff’s business in 1971 and 1972 was the production and sale of drainage culvert from these railroad tank cars. Because of the market conditions created by the above-mentioned ruling, Plaintiff was able to produce a longer-lasting product than competing items, — corrugated culvert — while selling that product at a lower price than the competition. Plaintiff’s principal customers for such culvert were local governments or road contractors who used the culvert for street and highway drainage and farmers who used such products for field drainage. The cranes and magnets which are the subject of this litigation were purchased by Plaintiff for the specific purpose of engaging in business of this nature.
d. In producing this culvert, the following operations are performed upon the railroad tank cars:
(1) The first step required is delivery of the cars to the work site. This is a switching operation which involved moving several cars simultaneously to the work site. The crane that is most conveniently located performs this function. The total time involved in such switching operation is approximately 30 minutes and, in the aggregate, amounts to approximately 5% of the cranes’ work time.
(2) Upon arrival at the work site, the tank is cleaned to remove all residual hydrocarbons. This is a safety measure made necessary because subsequent operations on the tank include the use of an acetylene torch which would render the operation hazardous because of fire, absent such cleaning.
(3) After the cleaning, the straps which secure the tank to the undercarriage of the railroad car are cut and the tank is lifted to the ground by the crane.
(4) In the case of an insulated tank, there is a thin metal shell which surrounds the tank and encases the insulation. An acetylene torch operator cuts the shell horizontally and the crane lays open, the two halves of the shell. Once open, one or more laborers scrape the insulation from the shell and pile it for disposal. The two shell halves are than removed from the work site by the crane and magnet and the shell is sold as scrap.
(5) The next step in converting the tank car into culvert consists of cutting the ends out of the tank, removing the coils, if any, and removing the dome of the tank. The crane is used to roll and reposition the tank to facilitate such cutting. The crane is also used in conjunction with the magnet or with cable in removing the coils.
(6) The crane then picks up the unprepared culvert and moves it to an area where a welder can repair and patch both the dome hole and the coil attachment hole. In some cases the crane is also used for positioning two prepared culverts so that they may be welded together, resulting in a culvert that is 60 feet long, rather than the conventional 30 feet.
(7) Finally, the crane is used to load the finished culvert aboard trucks for delivery.
e. During 1971 and 1972, approximately 80% of Plaintiff’s business was performed substantially as described above. During late 1972 and early 1973, with the advent of the fuel shortage, some sales of tanks, adapted for stationary use, were made. In such cases, the dome was removed, the coils, if any, were removed and the resulting holes in the tank were patched. Then the tank was adapted for conventional filling and emptying and sold for use as a storage facility for such products as gasoline, kerosene or diesel fuel. Of the 1,-924 tank cars purchased by Plaintiff, 71 were refurbished as above and sold as stationary tanks.
f. The balance of the 1,924 tank cars, when delivered to Plaintiff, were in such poor condition (752 cars) that Plaintiff either used them to patch the holes in tanks or culvert or Plaintiff cut them up for sale as scrap.
g. The primary purpose in Plaintiff’s purchase of the cranes and magnets and the primary use of the same was the production of culvert from the tank cars, as described above. The loading of scrap and the switching of tank cars to the work area were incidental to the primary business of Plaintiff and incidental to the primary use of such equipment.”
The statutory exemption here involved is set forth in Ark. Stat. Ann. § 84-3106 (D) (2) (Supp. 1973), as follows:
“Exemptions. — There are hereby specifically exempted from the taxes levied in this Act:
(D) (2) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce at manufacturing or processing plants or facilities in the State of Arkansas, but only to the extent that such machinery and equipment is purchased and used for the purposes set forth in this subsection.
(a) Such machinery and equipment will be exempt under this subsection if it is purchased and used to create new manufacturing or processing plants or facilities within this State or to expand existing manufacturing or processing plants or facilities within this State.
(c) It is the intent of this subsection to exempt only such machinery and equipment as shall be utilized directly in the actual manufacturing or processing operation at any time from the initial stage where actual manufacturing or processing begins through the completion of the finished article of commerce and the packaging of the finished end product. The term ‘directly’ as used in this Act is to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating or assembling raw materials or semi-finished materials into the form in which such personal property is to be sold in the commercial market. Hand tools, buildings, transportation equipment, office machines and equipment, machinery and equipment used in administrative, accounting, sales or other such activities of the business involved and all other machinery and equipment not directly used in the manufacturing or processing operation are not included or classified as exempt.
* * *
(e) For the purposes of this subsection, the term ‘manufacturing’ and/or ‘processing’, as used herein, refer to and include those operations commonly understood within their ordinary meaning, and shall also include mining, quarrying, refining, extracting oil and gas, cotton ginning, and the drying of rice, soy beans and other grains.”
POINT I. To deny the exemption the Director takes the position that an old railroad tank car is neither raw material nor semi-finished material within the meaning of the statute, supra, and furthermore, the appellant’s operation is one which is commonly understood as a “salvage operation.” We disagree with both contentions. In the first place the Director has given us no authority and we know of no authority that would exclude an old railroad tank car from being “raw or semi-finished materials” to a culvert manufacturer. In fact, in view of the ruling by the American Association of Railroads, the old tank cars would have been only so much scrap iron had not appellant through its ingenuity and labor fabricated a cylinder therefrom that could be used as a culvert. Furthermore, appellant’s operation is not the common or ordinary salvage operation where a próduct is disassembled and sold as used parts, for in this instance the appellant through its fabrication forms a culvert that actively competes in the market with culverts made from corrugated metal — the Director concedes that the persons engaged in the fabrication of corrugated metal culverts are engaged in the manufacturing process within the meaning of the exemption.
Consequently, we conclude that under the stipulated facts, appellant is a manufacturer of culverts within the meaning of the tax exemption, supra.
POINT II. The Director’s contention that the locomotive cranes and the 72 inch magnet are not used “DIRECTLY” in manufacturing is contrary to the position we took in Cheney, Commissioner v. Georgia-Pacific Paper Corp., 237 Ark. 161, 371 S.W. 2d 843 (1963). We there held that a piece of machinery was “directly” used in the manufacturing process when the item was an integral part of the plant and the removal of the item would stop the operation. The machinery here involved is not only an integral part of the operation but the operation in fact could not be performed without the use of the machinery.
POINT III. Finally the Director contends that the machinery here involved is not exempt because it is transportation equipment. In doing so he relies upon Heath v. Midco Equipment Co., 256 Ark. 14, 505 S.W. 2d 739 (1974). In that case we held that dump trucks used to transport rock from the quarry site to the rock crusher were not exempt because they came under the classification of “transportation equipment” which was excluded by the last sentence in Ark. Stat. Ann. § 84-1904 (r) (2) (c) (Supp. 1973). Of course the dump trucks there could not have been classified as “only the machinery and equipment used in the actual production during processing, fabricating or assembling raw materials or semi-finished materials” because (1) they were not an integral part of the operation and (2) they were only used for the transportation of the rock from the quarry site to the processing site and during that time no processing or fabricating occurred. Here however, the machines are used as tools not only to move but to hold and position the old railroad tank cars during the time that the culverts are being fabricated and as such tools the machines are a necessary and integral part of the operation. While “transportation equipment” is obviously a mode of conveyance it does not necessarily follow that every mode of conveyance is “transportation equipment” within the meaning of the statute. Thus we find from the stipulated facts that the trial court erred in classifying the machinery here involved as “transportation equipment.”
Reversed and remanded.
Harris, C.J., and Jones, J., dissent. | [
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ROBERT L. Brown, Justice.
Appellants Timothy Davis tice. Holiman, and Hopkins Law Firm (“Attorneys”) are attorneys who petitioned the chancery court to determine the existence of an attorney’s lien on funds held by the Arkansas Department of Finance and Administration (“DFA”). The petition was the outgrowth of a class action brought by the Attorneys on behalf of certain business corporations from whom income taxes had been erroneously collected by DFA. The chancery court certified the class but found that the taxes had not been collected in error. We reversed the court’s determination that there had been no error in the collection of taxes, and we also reversed the certification of the class for the reason that the waiver of sovereign immunity prescribed by state statute only applies to individual claims for refund and not to class actions. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). Following our reversal of the class certification, DFA authorized and paid tax refunds to the business corporations who were former members of the class created by the Attorneys. The Attorneys claimed attorney’s fees based on these refunds. Many of the business corporations paid the attorney’s fee, but some have refused to do so. The chancery court denied collection of attorney’s fees from those nonpaying corporations, and the Attorneys now appeal that decision. We agree with the chancery court that the Attorneys are not entitled to enforce an attorney’s hen.
The history of this case is important to our resolution of this matter. After the chancery court certified the class of approximately 3,100 business corporations on August 30, 1995, the Attorneys advised all members of the proposed class by a Notice of Pendency of Class Action and of Rights of Class Members that they would advance the costs of litigation and after any recovery following an appeal would be awarded those costs and thirty-five percent of any refund as attorney’s fees. None of the corporations, which are currently unwilling to pay the attorney’s fees, elected to opt out of the class. After this court decided that this case could not be certified as a class action in ACW, Inc. v. Weiss, supra, but before a petition for rehearing had been decided, the Attorneys wrote the business corporations that were affected. In that memorandum, the Attorneys advised the corporations that they were entitled to file for a refund individually, but not as a class. The Attorneys further advised that they had filed a verified claim for refund with DFA on behalf of each corporation. The memorandum also stated that the Attorneys were entitled to thirty-five percent of any refunded amount as attorney’s fees pursuant to the fee agreement that was part of the class action.
A second memo was sent out to the business corporations on September 15, 1997, after rehearing was denied by this court in ACW, Inc. v. Weiss, supra. In that memo, the Attorneys again informed the corporations that they were entitled to refunds. They further informed the corporations that they (the Attorneys) were claiming a lien for attorney’s fees based on an expressed and implied contract in the amount of thirty-five percent of all refunds. Two days later on September 17, 1997, the Attorneys filed a claim for an attorney’s lien with DFA for thirty-five percent of those refunds based on tax years 1991 through June 31, 1997.
On September 17, 1997, DFA wrote the Attorneys and said that it expressed no opinion on the proper recipient of the thirty-five percent claimed as attorney’s fees but that it did not want to risk paying that amount twice. Thus, those business corporations filing amended returns within the three-year limitations period would be refunded sixty-five percent of their entitled amount. DFA would hold the remaining thirty-five percent of the refunds pending a decision by the chancery court to determine the appropriate payee. On October 10, 1997, DFA wrote the business corporations and gave them the same information.
On November 13, 1997, DFA wrote the Attorneys that it would pay claimed refunds from 1991 forward and that for the 1996 tax year, DFA was automatically adjusting the income tax returns and issuing refunds for sixty-five percent of the refund amount irrespective of whether a claim was filed by the business corporation (the “auto-adjust refund”). The balance of thirty-five percent of the refunds would be held pending a decision on the attorney’s lien. The retained fund was not interpled or transferred to chancery court.
On July 9, 1998, the Attorneys moved the chancery court to determine the validity of their claimed attorney’s lien. On July 10, 1998, the Attorneys contacted those business corporations that had not agreed to pay the thirty-five percent fee and informed them of their lien claim. They further advised that if the nonpaying corporations wished to oppose the lien, they should file a response and appear at the hearing.
On October 28, 1998, a hearing was held on the lien matter in chancery court. It should be noted at this juncture that the vast majority of business corporations (over 1,800) had authorized DFA to pay the retained thirty-five percent of the refund to the Attorneys either by hiring the Attorneys or by signing a Statement of No Contest and Disbursement Authorization. The fees collected by the Attorneys to date are approximately $2 million. The hearing, therefore, only concerned the nonpaying corporations, which, as of this appeal, involved 562 business corporations. None of the nonpaying business corporations appeared at the hearing; nor did counsel appear on their behalf. Some of these corporations, however, wrote letters to the chancery court contesting the fees requested by the Attorneys.
Following the hearing, the chancery court found in its order that the nonpaying corporations became eligible for refunds as a result of this litigation and due to the work of the Attorneys. Because of their work, according to the chancery court, DFA initiated the auto-adjust refund procedure whereby all business corporations paying the illegal tax in 1996 were not required to claim a refund but automatically received refunds of sixty-five percent of the taxes due. The chancery court referred to the high quality of the Attorney’s work in its findings and stated that if it had the authority, it would award an attorney’s fee of twenty percent of the funds held by DFA. The chancery court concluded, however, that the Attorneys did not have an express contractual right to the claimed thirty-five percent of the funds from the nonpaying corporations, but only had a contractual right with the named class representatives. In addition, the chancery court concluded that because the Attorneys were not fired, they had no right to compensation in quantum meruit or otherwise for work done or for benefits bestowed to the nonpaying corporations. Nor did an implied contract right exist, according to the chancery court, based on the fact that the nonpaying corporations received notice of the fee agreement. Finally, the chancery court ruled that a common-fund or substantial-benefit theory of recovery did not apply in this case because a common fund was not created. It concluded that it was without authority to award attorney’s fees.
I. Common Fund or Common Benefit
We begin by noting that the Attorneys assert that of the original 3,100 business corporations, 562 fall into the category of nonpaying corporations. The Attorneys first take issue with the chancery court’s conclusion that no common fund or common benefit derived from their actions. They claim that the common-fund doctrine, in essence, is the equitable power in the chancery court to award attorney’s fees based on the fruits clients gain from their attorney’s actions. They further contend that the doctrine of a common fund should be recognized when the efforts of attorneys result in a benefit to others and when the circumstances enable an identification of that benefit so that an attorney’s fee may be determined. They emphasize that the chancery court expressly found that the nonpaying corporations received the benefits of the Attorneys’ labor, which included avoiding future erroneous taxes, receiving an auto-adjust refund, and receiving the right to refunds for every year that the income tax was improperly collected.
This court follows the American rule, which requires every litigant to bear his or her attorney’s fees, absent a state statute to the contrary. Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000); Love v. Smackover Sch. Dist., 329 Ark. 4, 946 S.W.2d 676 (1997). Arkansas has recognized, in addition, the commor.-fund and common-benefit exceptions to the American rule. Lake View Sch. Dist. No. 25 v. Huckabee, supra; Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986); Powell v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980). The United States Supreme Court has also recognized the common-fund exception to the American rule. Boeing Co. v. Van Gemert, 444 U.S. 472 (1980); Sprague v. Ticonic National Bank, 307 U.S. 161 (1939). In Boeing, a class action was involved, and the Court defined the common-fund exception as applying when a lawyer recovers a common fund for the benefit of persons other than himself or his client. Under such circumstances, that lawyer is entitled to a reasonable attorney’s fee from the fund as a whole. The Court went on to say:
The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjusdy enriched at the successful litigant’s expense. Jurisdiction over the fund involved in the litigation allows a court to prevent this inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately among those benefited by the suit.
See id. at 478 (citations omitted). The Court further stated that in a common-fund case, the class of persons should be easily identifiable, the benefits should be traceable, and the costs should be properly assessed in proportion to the benefit received. The Court concluded that the award of attorney’s fees was proper in the Boeing class action because all of these requirements were met. Every member of the class, including any absentee member, was required “to share the attorney’s fees to the same extent that he can share the recovery.” See id. at 480.
Two foreign jurisdictions have addressed the issue of whether a common fund accrues in the context of tax refunds under facts that bear some similarity to those in the instant case. In Bailey v. State of North Carolina, 500 S.E.2d 54 (N.C. 1998), the North Carolina Supreme Court considered the common-fund exception in a class action which challenged the constitutionality of income tax legislation that placed a cap on exemptions for certain retirees. The State of North Carolina argued that the common-fund doctrine did not apply because the tax refunds or credits were separate, individual claims and not a common fund. The North Carolina Supreme Court, however, refused to accept this “technical interpretation” and cited the same test used in Boeing. See id. at 72-73. The court held that because the retiree beneficiaries were identifiable, the benefits could be traced, and the costs could be accurately shifted, attorney’s fees should be awarded. The fact that the judgment resulted in many different refunds did not preclude recovery. The Bailey case, though, is distinguishable from the case at hand. In Bailey, a certified class of plaintiffs was involved and they created an identifiable fund under court control with their combined refunds from which an attorney’s fee could be assessed. An analogous common fund was not created in the instant case.
A result contrary to Bailey was reached in Hagge v. Iowa Dep’t of Revenue and Fin., 539 N.W.2d 148 (Iowa 1995), and that was the decision that was persuasive to the chancery court in the case before us. In Hagge, a law firm successfully represented one taxpayer in a suit to recover tax refunds owed to a retired federal employee. After the suit was over, the law firm requested attorneys’ fees from similarly situated retired federal employees, though a class action was not involved, and argued that the firm’s efforts allowed many other federal retirees to become eligible for state income tax refunds, which created a common fund. The Iowa Supreme Court denied the attorney’s fees. It noted that the Iowa Code did not allow tax refunds to be paid to anyone other than the individual taxpayer. As a result, the court refused to hold that a common fund had been created from which an award of attorney’s fees could be made. The court concluded that the Department of Revenue owed each beneficiary a separate refund based on individual circumstances. Furthermore, in Hagge, as in the instant case, the Iowa Revenue Department had withheld part of the refunds due to the dispute over attorney’s fees. The law firm contended that this created a common fund, but the Iowa Supreme Court disagreed. It noted that there was no control by the trial court over this fund. Rather, each refund was the individual property of each taxpayer.
We agree with the reasoning of the Iowa Supreme Court in Hagge. No common fund under chancery court control was created by the actions of DFA in this case. DFA did not withhold the thirty-five percent of the refunds to create a common fund. It only did so as a prudent measure to avoid the contingency of having to pay the thirty-five percent twice.
We do recognize that the individual refunds, even to the nonpaying corporations, were the result of the efforts of the Attorneys and that this led to DFA’s decision to refund erroneous taxes paid beginning in 1991 and to implement the auto-adjust refund for one year. But those facts do not offset the fact that no common fund was created by the Attorneys’ actions. Moreover, at no point did the nonpaying corporations agree to legal representation by the Attorneys or authorize them to take any action on their behalf.
Nor do we see recovery as appropriate under a substantial-benefit theory such as we approved in Lake View Sch. Dist. No. 25 v. Huckabee, supra. In Lake View, the State waived sovereign immunity, acknowledged that a substantial benefit in a fixed dollar amount had accrued to the State due to the attorneys’ efforts, and urged the court to approve the attorney’s fees. Here, the nonpaying corporations have acknowledged no benefit that resulted from the Attorneys’ efforts and have never recognized the attorney’s entitlement to attorney’s fees. The two situations are entirely different.
Other authority relied on by the Attorneys is likewise distinguishable. In Millsap v. Lane, supra, where this court recognized the substantial-benefit rule, we did so in the context of a shareholder derivative action brought on behalf of the corporation where the corporation received an identifiable benefit. In Millsap, representation of the shareholders by counsel in the derivative action was clear. In the case at hand, there was no legal relationship forged between the nonpaying corporations and the Attorneys.
In Haynie v. Camden Gas, 186 Ark. 842, 56 S.W.2d 419 (1933), also relied upon by the Attorneys, this court upheld an attorney’s lien where attorneys had represented the City of Camden and its gas customers against Camden Gas Corporation in a dispute over a city ordinance requiring lower rates for gas customers. Nearly all of the gas customers had signed an agreement to pay counsel twenty percent of any refund at a mass meeting of the customers. The City of Camden prevailed, and Camden Gas was required to make refunds to the gas customers from a fund accumulated by the utility. We held that the City of Camden was the representative or agent of the gas customers and that the law implied an agreement to the attorney’s fees to be paid by all the gas customers who stood by and, without objection, accepted the legal services and benefits.
We view the Haynie facts as more analogous to a class action where the City of Camden acted as the representative of the gas customers and where a fund was created by the gas company. In the case before us, on the other hand, there was no class action and no named entity or agent acting on behalf of the nonpaying corporations. Nor was a common fund created by the efforts of the Attorneys, as has already been discussed.
Finally, there is the case of Sprague v. Ticonic National Bank, supra. In this 1939 case, a bank depositor, Lottie Sprague, lost money deposited in a bank due to the bank’s closing. She sued in federal district court for a lien against the bonds that secured her deposit and was successful. Sprague then sued and alleged that her successful claim established precedent for “recovery in relation to fourteen trusts in situations like her own,” and she prayed for reasonable attorney’s fees based on those similar matters. 307 U.S. at 163. The Supreme Court then said:
Whether one professes to sue representatively or formally makes a fund available for others may, of course, be a relevant circumstance in making the fund liable for his costs in producing it. But when such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation — the absence of an avowed class suit or the creation of a fund, as it were, through stare decisis rather than through a decree — hardly touch the power of equity in doing justice as between a party and the beneficiaries of his litigation.
Id. at 166-167.
We simply disagree with the Sprague rationale and further disagree that the decision is precedent for cases such as the one we now have before us. Under the Attorneys’ application of Sprague, counsel for one litigant who is successful in obtaining a tax refund could collect attorney’s fees from any successive taxpayer who is successful under similar circumstances irrespective of Ark. R. Civ. P. 23, which we adopted in 1979, and the class-action process. We decline to approve attorney’s fees, under the Sprague reasoning where a class action is not involved, where no attorney-client relationship has been cemented with subsequent claimants, and where the sole basis for claiming the fee is stare decisis.
In sum, we hold that under these facts where no common fund was recognized or established and where no class action existed with respect to the nonpaying corporations so as to establish an obligation to pay fees, an attorney’s lien is not enforceable.
II. Quantum Meruit
The Attorneys next contend that apart from the common-fund doctrine, they are entitled to compensation for work done and for services performed on behalf of the nonpaying corporations. Citing Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993), they urge that this is the rule of quantum meruit and that it applies if attorneys are discharged. Under the rule, the discharged attorneys are entitled to reasonable compensation for their services. Where no discharge is involved, the Attorneys claim that they are entitled to a lien for fees consistent with their agreement with their clients, and they cite us to Ark. Code Ann. § 16-22-301 (Repl. 1999), in support of this proposition.
The fallacy in the Attorneys’ argument is that no attorney-client relationship developed between them and the nonpaying corporations. The Attorneys argue that such a relationship did exist for a time until this court reversed certification of the class in ACW, Inc. v. Weiss, supra, but that is not correct. The effect of our decision in Weiss was to nullify any class certification because it was contrary to the doctrine of sovereign immunity as set out in the State Constitution. Without an attorney-client relationship, there is no basis for claiming an attorney’s fee under quantum meruit or § 16-22-301. The Attorneys’ argument fails for that reason.
III. Express or Implied Contract
Finally, the Attorneys urge that each nonpaying corporation, either expressly or impliedly, agreed that the Attorneys would receive a fee. They base this on the notice that was sent out to the proposed class of business corporations which contained the fee arrangement. They point out that none of the nonpaying corporations objected to the fee arrangement or opted out of the class. They emphasize that under state law, an agreement for compensation may be express or implied. Ark. Code Ann. § 16-22-302 (Repl. 1999).
We agree with the chancery court that no express or implied contract arose under these facts. The nonpaying corporations never assented to legal representation by the Attorneys after the class action was out of the picture and never agreed to pay the Attorneys a legal fee. We believe that more is required to establish a legal relationship and entitlement to fees, absent a class action, than the fact that the nonpaying corporations requested a refund or received an auto-adjust refund from DFA, regardless of the fact that the Attorneys’ work paved the way for these refunds. We reject the Attorneys’ reasoning on this point.
Prior to submission of this case, the Attorneys moved this court to allow a supplemental addendum inadvertently omitted from the reply brief. That motion is granted.
Affirmed.
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W.H. “Dub” ARNOLD, Chief Justice.
This appeal is taken ustice. liability action. The appellant asserts that it is entitled to a new trial or, in the alternative, judgment notwithstanding the verdict. We disagree and hereby affirm the trial court,
The case involves an action which was originally filed by Raymond and Vivian Ross against appellant Gibson Appliance Company, a division of White Consolidated Industries, Inc. (hereinafter “Gibson”), to recover for damages sustained to their home by fire on March 9, 1993, caused by either the manufacture by Gibson of a defective and unreasonably dangerous refrigerator, or Gibson’s negligence. More specifically, the Rosses’ action against Gibson encompassed all theories available under the products liability law, including negligence, breach of warranty, and strict liability. Subsequent to the filing of the initial complaint, on or about March 1, 1996, appellee Nationwide Insurance Company (hereinafter “Nationwide”) was substituted as the party plaintiff in lieu of Mr. and Mrs. Ross, pursuant to a determination by the trial court that Nationwide was the real party in interest.
Gibson denied all allegations of fault and attributed the fire to a burner that was allegedly left on in the Rosses’ home, igniting particles in a skillet which Gibson maintains caused the fire to spread to the rest of the kitchen. Gibson further challenged service of process because it was not served with a copy of the summons and complaint within 120 days after Nationwide had filed its com plaint, although Nationwide had timely moved for and was granted an extension of time to perfect service by the trial court.
The case was tried on January 11 and 12, 1999. Prior to trial, both sides stipulated that the damages totaled $37,739.89. After deliberating, the jury returned a verdict in favor of appellee Nationwide in the amount of $11,336.32. After trial, Gibson filed a motion for new trial or, in the alternative, judgment notwithstanding the verdict. As grounds, Gibson alleged that although the verdict form was a general one, the jury’s verdict obviously apportioned over fifty percent of fault to Nationwide’s insured, that the jury’s verdict was not supported by substantial evidence, and that the jury’s verdict was the product of passion and prejudice. In a hearing on the motion, the trial court denied Gibson’s motion. It is from the judgment and order denying its motion for new trial or, in the alternative, motion for judgment notwithstanding the verdict that appellant Gibson now appeals.
Appellant asserts the following points:
1) The trial court erred in denying the summary judgment motion of Gibson Appliance Company based on Nationwide Insurance Company’s failure to show “good cause” for an order extending time for service of the complaint;
2) The trial court erred in denying Gibson Appliance Company’s motion for new trial or, in the alternative, motion for judgment notwithstanding the verdict.
A. The jury’s verdict apportions more than fifty percent of fault to Nationwide Insurance Company’s insured;
B. The jury’s verdict is clearly against the preponderance of the evidence;
C. The jury’s verdict is not supported by “substantial evidence”;
D. The jury’s verdict is the product of passion and prejudice by the jury.
I. Denial of Summary Judgment
The plaintiffs below (Nationwide) filed suit within the time allowed by the statute of limitations, but did not obtain service on the defendant (Gibson) within 120 days, as required by Rule 4(i) of the Arkansas Rules' of Civil Procedure. However, on the 120th day, Nationwide filed a motion for extension of time in which to obtain service. In its motion, it merely stated that it had attempted service and that an investigation was being conducted to determine the defendant’s address. The motion was granted by the trial judge, who found “good cause,” as required by Rule 4(i). Service was then perfected within five days thereafter.
Upon answering the complaint, Gibson claimed that Nationwide had not shown “good cause” for the extension of time. A motion for summary judgment was subsequently filed on the issue. At a hearing on the motion for summary judgment, Nationwide presented additional proof of good cause. The motion for summary judgment filed by Gibson was denied by the trial court, and Gibson now appeals from that denial.
It is a well-settled principle of Arkansas law that, generally speaking, a trial court’s order denying a motion for summary judgment is neither reviewable nor appealable. See Ozarks Unlimited Resources Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998); Direct Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997). Gibson, however, contends that the trial court’s ruling is reviewable on appeal, because in its motion for summary judgment Gibson had raised the issues of the running of the statute of limitations and naming the insurance company as the real party in interest. Gibson contends that because it raised these issues in its first responsive pleading, and properly preserved them, the trial court’s ruling on this issue is akin to a ruling on a motion to dismiss, and not summary judgment. We find this argument to be without merit. This Court has repeatedly refused to address arguments where the effect of doing so is tantamount to reviewing the denial of a motion for summary judgment. See Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996); Nucor-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994); Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh’g denied, 315 Ark. 335(A), 896 S.W.2d at 8 (1994). Accordingly, we hold that Gibson’s argument that summary judgment should have been granted in its favor on this issue is not subject to appellate review and will not be addressed.
II. Motion for New Trial or, in the alternative, JNOV
Gibson contends that it is entitled to a judgment notwithstanding the verdict (JNOV) or a new trial for several reasons. First, Gibson asserts that the jury’s verdict necessarily and mathematically apportions fault in excess of fifty percent to Nationwide based on the imputable conduct of its insureds, Raymond and Vivian Ross. Gibson asserts that because Nation-wide’s fault exceeded that of Gibson, Gibson is entided to have a verdict entered in its favor as a matter of law because the verdict is unenforceable under state law. Additionally, Gibson asserts that the verdict in favor of Nationwide is clearly against the preponderance of the evidence, is not supported by substantial evidence, and is the product of passion and prejudice by the jury.
A. Whether the jury’s verdict apportioned more than fifty percent of fault to Nationwide Insurance Company’s insured
It was stipulated that Nationwide’s damages totaled $37,739.89, which represents the amount it paid Raymond and Vivian Ross for the damage to their home as a result of the fire. Not only was this document entered as evidence, but it was read to the jury during trial. Appellant contends, and the record reflects, that at the completion of all the evidence, the case was submitted to the jury, without objection, on a comparative-fault instruction that required that Nationwide’s damages be reduced by the percentage of the fault of Raymond and Vivian Ross.
Arkansas law concerning comparative fault is set by statute. Ark. Code Ann. § 16-64-122 (Supp. 1999) states in pertinent part:
(a) In all action for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.
(b)(2) If the fault chargeable to a party claiming damages is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is not entided to recover such damages.
(c) The word “fault” as used in this section includes any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.
Here, the jury’s verdict, awarding only $11,336.32 in favor of Nationwide when the amount of damages was stipulated to be $37,739.89, may indeed indicate that it apportioned fault to Gibson well below the required fifty-one percent required by law for Nationwide to recover. However, appellant failed to abstract the comparative-fault instruction which was submitted to the jury, upon which it relies in order to prove that the jury was intentionally making the apportionment Gibson contends it made.
We have consistently held that our review on appeal is limited to the record as abstracted, and we will not reach the merits of a case when documents in the transcript that are necessary for an understanding of the case are not abstracted. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); Burns v. Carroll, 318 Ark. 302, 885 S.W.2d 16 (1994). Rule 4-2(a)(6) of the Rules of the Supreme Court and Court of Appeals provides, in relevant part:
The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision. . . .
(Emphasis added.)
Clearly, without the ability to consider the comparative-fault instruction the jury was given, since it was not abstracted as required, it is impossible for this Court to determine, without resorting to speculation, whether the jury followed said instruction. Moreover, appellant did not request that the jury be given special interrogatories, which would have required them to clearly apportion fault, if that is indeed what they were doing. Further, appellant did not object to or seek clarification regarding the verdict before the jury was discharged.
This court has held that the time to object to an irregularity or inconsistency in the verdict is prior to the discharge of the jury. See P.A.M. Trans., Inc., v. Ark. Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991); Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988). Appellant contends that these cases do not apply because there was no “inconsistency” or “irregularity” in the jury’s verdict. In fact, appellant contends that the verdict was very clear in articulating the jury’s intent to apportion seventy percent of the fault to Nationwide. Appellant contends that this verdict was not factually impossible, but it was simply legally unrecognizable, in light of the comparative-fault statute.
Appellant states on the one hand that the verdict is not “inconsistent,” but then on the other hand argues that the verdict is inconsistent with the comparative-fault instruction the jury was given. As stated above, given that the instruction in question was not abstracted, and further that no objection was made nor clarification sought from the jury before it was discharged, this Court is left only to speculate about what the jury’s verdict means. As such, we will not question the jury’s verdict.
B. Whether the jury’s verdict was clearly against the preponderance of the evidence.
Appellant Gibson next contends that when Nationwide’s proof is compared to the proof put forward by Gibson, a verdict in Nationwide’s favor is clearly contrary to the preponderance of the evidence, and that, therefore, the trial court’s failure to grant a new trial constitutes an abuse of discretion. We disagree.
At trial, both Raymond and Vivian Ross testified that they had not had any problems with the refrigerator prior to the fire and that no maintenance, repairs, alterations, or modifications had been done to the refrigerator by them or anyone else since the date it was purchased. The Rosses also testified that the stove next to the refrigerator was not being used for any purpose whatsoever when the fire occurred.
In addition, Nationwide produced the testimony of two expert witnesses, Craig Andres and Lonnie Buie. Andres is a qualified fire investigator and cause-and-origin expert, who testified that the fire originated from, and inside, the refrigerator, based on his investigation and inspection of the fire scene. Buie, a qualified expert in electrical engineering and fire investigations, opined that the fire started inside the refrigerator and was caused by the produc tion of electrical arcing, which in turn resulted from the defective condition of the wiring inside the refrigerator.
In rendering his opinions, Craig Andres relied on his personal inspection of the fire scene conducted on March 11, 1993, two days after the fire, which allowed him to follow and trace all of the burn and heat patterns generated by the fire. Even Gibson’s purported expert, Richard Keith, agreed that a personal inspection is always the preferred method of conducting an investigation. Interestingly, Keith did not even inspect the fire scene or refrigerator, even though he acknowledged the importance of doing so, and in fact, was not even hired by Gibson until October 20, 1998, approximately five years and some months after the accident.
Certainly, when examining the evidence, the weight and value of testimony is a matter within the exclusive province of the jury. See Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994). The crux of Gibson’s argument that the trial court should have granted its motion for directed verdict, and presently its motion for judgment notwithstanding the verdict, is Nationwide’s alleged failure to prove either the existence of a defect and establish that the defect caused the damage, or that Gibson was negligent.
At trial, there was conflicting testimony and opinions as to the cause of the fire and the probability that a defective condition of the refrigerator caused the fire that subsequently damaged the Rosses’ residence. Nationwide’s theory was that the refrigerator was defective and unreasonably dangerous, and/or negligently manufactured, thus causing the fire, while Gibson’s proposed alternative theory was that the fire originated on the Rosses’ stove top and spread to the refrigerator. As previously stated, it was within the jury’s province to believe Nationwide’s theory over Gibson’s version. Gibson cannot even argue that Nationwide’s experts were not properly qualified because Gibson did not object to the testimony and opinions of either based on their qualifications. As such, we cannot say that the jury’s verdict was clearly against the preponderance of the evidence.
C. Whether the jury’s verdict was supported by “substantial evidence.”
The standard of review for a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict, is the same for each, i.e., whether there is substantial evidence to support the jury verdict. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999); Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). In determining whether a new trial should be granted, a trial court may not substitute its view of the evidence for that of the jury in granting a new trial unless the verdict is clearly against a preponderance of the evidence. See Razorback Cab of Port Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). As stated above, based upon the evidence adduced at trial and the testimony of the experts on both sides, we cannot say that the jury’s verdict was clearly against the preponderance of the evidence. As such, the only question remaining is whether there was substantial evidence to support the jury’s verdict.
Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” Hall v. Grimmett, supra. In addition, we have held that in examining whether substantial evidence exists, all evidence must be examined in the light most favorable to the party on whose behalf the judgment was entered and given its highest probative value, taking into account all reasonable inferences deducible from it. Id.
In the instant case, when the evidence is viewed in a light most favorable to Nationwide, clearly substantial evidence existed to support the jury’s verdict in Nationwide’s favor. Certainly, in light of the evidence and testimony discussed above, there was ample evidence of a substantial nature which quite plainly supported the jury’s verdict and which was, at the very least, the equivalent of any countervailing evidence.
Nonetheless, Gibson appears to be attacking the weight given the opinions of Nationwide’s experts. Gibson cites no authority whatsoever, however, for the proposition that a verdict cannot be sustained because the experts presented by both parties disagree and espouse opposing theories. First of all, juries are not bound to accept an expert opinion as conclusive, but should give it whatever weight they think it should have and may disregard any opinion testimony if they find it to be unreasonable. See AMI 106.
Secondly, the law is quite clear that a qualified expert’s opinion constitutes substantial evidence unless it is shown that the expert’s opinion is without a reasonable basis. Buchanna v. Diehl, 98 F.3d 366, 369 (8th Cir. 1996), quoting Ford Motor Co. v. Massey, 316 Ark. 345, 855 S.W.2d 897, 899 (1993). Again, Gibson, like the plaintiff in Buchanna, cannot argue that Andres or Buie were not properly qualified because Gibson did not object to the testimony and opinions of either based on their qualification. Moreover, there was a reasonable basis for both of their opinions. Gibson had an opportunity to cross-examine each of them to try to show that their opinions had a questionable basis. Such an opportunity was all that was required, and the jury was entitled to credit the testimony of Andres and Buie if it so chose, which obviously it did.
In short, when viewed in a light most favorable to Nationwide, substantial evidence clearly existed to support the jury’s verdict in its favor. Therefore, as such, we cannot say that the trial court erred in denying appellant’s- motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict.
D. Whether the verdict was the product of passion and prejudice by the jury.
Gibson contends that the jury’s verdict was the product of passion and prejudice, and that the trial court’s denial of it’s motion for new trial because of this fundamental unfairness constitutes an abuse of discretion and is reversible error. We disagree.
The record in this case reflects that after several hours of deliberation, the jury submitted a series of questions to the trial court, the first of which was not documented by the court reporter and is not part of the record herein but, according to appellant, concerned whether the refrigerator was grounded at the time of the fire. The jury stated in its next question that it could perhaps reach a compromise but that it needed to know which alternative in the comparative-fault instruction would not affect the “credibility” of Nationwide’s insured couple, the Rosses, whose home was the site of the fire. The jury was then instructed that it was only to base its verdict on the “evidence in the case.” The final jury question simply asked whether the Rosses could be sued. After being advised by the court that the Rosses could not be sued, the jury returned its verdict within fifteen minutes.
Gibson contends that the jury clearly made its compromise decision on the basis of whether or not the Rosses could be sued for the damage caused by the fire, and not on the basis of the evidence. Gibson contends that the jury’s obvious concern with the legal ramifications of its factual conclusions on a disinterested third party clearly shows that the jury’s verdict was influenced by passion and prejudice for the Rosses. We find appellant’s arguments to be unpersuasive.
First, there is no evidence to support appellant’s contention on this point. The sole fact that the jury asked questions in regard to the Rosses fails to prove that the jury’s verdict was based on passion or prejudice. In fact, the verdict that the jury awarded, in and of itself, was substantially less than the amount of damages sustained and stipulated; this clearly demonstrates that the jury’s determination was not improperly influenced. Further, the appellant cites no case law or other authority in support of its position on this point. As discussed previously, if Gibson was of the opinion that the jury’s verdict was irregular or inconsistent, or even unclear, it had a duty to raise these issues at trial and before the jury was discharged; it chose not to do so.
In short, it is clear that the jury chose to believe Nationwide’s theories as to the cause and origin of the fire, which it was certainly at liberty to do, and discounted those theories proffered by Gibson. At the same time, it would amount to little more than speculation and conjecture for us to attempt to ascertain at this point the basis for the jury’s verdict, which was general in nature and was not questioned at the appropriate time. Quite simply, Nationwide put on sufficient and substantial evidence to support its claims against Gibson, as well as create a question for the jury on the issues of product liability, negligence, and breach of warranty. Accordingly, we hold that the trial court’s actions were proper, and the jury’s verdict should stand.
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Ray THORNTON, Justice.
This case involves a dispute ice. neighbors regarding the establishment of the boundary line between them. They each claim an interest in a strip of land fifteen-feet wide east and west, and one-hundred fifty feet north and south (hereinafter “the strip”) that separates their residential properties. The record owner of the strip has not been made a party to this litigation, and none of the parties to this litigation have any record title to the strip. The trial court attempted to resolve the dispute without joining the record owner of the strip. We reverse and dismiss the case.
The litigation commenced when the plaintiffs, William and Delores Mitchell, brought an action against the defendant, Mary Ellen Koonce, seeking to quiet title by asserting ownership of the east half of the strip by adverse possession and seeking an injunction requiring Ms. Koonce to remove a fence on the eastern boundary of the strip. There is no showing that the record owner of the strip was given notice of the litigation. Ms. Koonce responded by asserting her own claim of title to the entire strip both by adverse possession and by acquiescence of the plaintiff to the eastern boundary of the strip as the property line. She did not join the record owner of the strip in her answer. The intervenor, Norris Surratt, joined in the litigation, seeking to protect his record title to property separate from the disputed strip from any claim of adverse possession. Because we conclude that the case must be dismissed, we do not reach the merits of the intervenor’s claims.
This is a bizarre case in which we have two parties battling over the strip of land, but the record owner of the strip was not in court. The trial court acknowledged in its amended order that an unknown record owner still retains the eastern seven and one-half feet of the strip. Moreover, we note that Mr. Mitchell’s claim to the eastern half of the strip was contradicted by his own testimony that “[w]e do not own it and the Koonces do not own it. Neither party has paid taxes on it.” No boundary line was established between the Mitchells and Ms. Koonce, but the width of the strip belonging to the unknown holders of record title was reduced from fifteen feet to seven and one-half feet.
We observe that, in the absence of the record owner, the trial court could not resolve all issues before it. The ownership of the strip remains subject to further dispute between the Mitchells, Ms. Koonce, and the unknown holder of record title. In order to establish a boundary between the Mitchells and Ms. Koonce, it is necessary to adjudicate the interest of the record owner. Therefore, the controversy over who eventually will own the strip between the Mitchells and Ms. Koonce remains unresolved, and will require further litigation to settle title.
An order is not final when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Stockton v. Sentry Ins., 332 Ark. 417, 965 S.W.2d 762 (1998). See also Ark. R. Civ. P. 54(b). The underlying policy of this rule is to avoid piecemeal appeals. Id. Even though an issue on which a court renders a decision might be an important one, an appeal will be premature if the decision does not, from a practical standpoint, conclude the merits of the case. Doe v. Union Pac. R.R., 323 Ark. 237, 914 S.W.2d 312 (1996).
The proceedings in the case before us were flawed because the record owner was not given notice of the petition to quiet title, and was not made a party. Therefore, we must resolve the question whether the trial court had subject-matter jurisdiction to adjudicate the interest of that record owner in the strip. We must raise issues of subject-matter jurisdiction even when such questions are not raised below. Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). In determining subject-matter jurisdiction, we note that a prima facie case to quiet title requires a showing that the plaintiff has legal tide to the property and is in possession. Gingles v. Rogers, 206 Ark. 915, 175 S.W.2d 192 (1943). In an action to quiet title, the plaintiff has the burden of establishing his or her title to the land. Bullock v. Duerson, 95 Ark. 445, 129 S.W. 1083 (1910).
Arkansas Code Annotated sections 18-60-501 — 505 (1987) provide the statutory framework for actions to quiet title. Specifically, Ark. Code Ann. § 18-60-503 (1987) provides the procedure by which notification must be given to all persons who claim an interest in the disputed land. The statute reads in pertinent part:
(a) Upon the filing of the petition [to quiet title], the clerk of the court shall publish a notice of the filing of the petition on the same day of each week, for four (4) weeks in some newspaper published in the county . . . The petition shall describe the land and call upon all persons who claim any interest in the land or Hen thereon to appear in the court and show cause why the title of the petitioner should not be confirmed.
Id.
It is well established that, in order to constitute adverse possession, the possession must be actual, open, continuous, hostile, exclusive, and be accompanied by an intent to hold adversely and in derogation of, and not in conformity with, the right of the true owner. Staggs v. Story, 220 Ark. 823, 250 S.W.2d 125 (1952). Implicit in this rule is that the record owner must be a party to the proceedings, or be given notice of the petition to quiet tide as provided by Ark. Code Ann. § 18-60-503.
Here, nothing in the record reflects compliance with Ark. Code Ann. § 18-60-503, and because of the failure to give notice to the record owner, neither appellant nor appellee were able to make a prima fade case to quiet tide. Therefore, we hold that the trial court lacked subject-matter jurisdiction to adjudicate the rights to the land. When the trial court lacks subject-matter jurisdiction, the appellate court also lacks subject-matter jurisdiction. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995).
In actions where the trial court lacked subject-matter jurisdiction, we have reversed and dismissed without prejudice. Weiss v. Johnson, 331 Ark. 409, 961 S.W.2d 28 (1998). Accordingly, we reverse and dismiss without prejudice in this case.
Reversed and dismissed without prejudice.
Glaze and Brown, JJ., concur.
Imber and Smith, JJ., dissent. | [
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DONALD L. Corbin, Justice.
Appellant Roger Don Farmer appeals icjudgment e. the Benton County Circuit Court convicting him of rape, second-degree domestic battering, and terroristic threatening and sentencing him to a total of ten years’ imprisonment. For reversal, Appellant argues that there was insufficient evidence to support a conviction of rape. Specifically, he argues that there was no evidence showing that he committed an act of sexual gratification, as provided in Ark. Code Ann. § 5-14-101(1) (Repl. 1997). This appeal was certified to us from the Arkansas Court of Appeals, as presenting an issue of statutory interpretation and requiring clarification or further development of the law. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1 — 2(b) (5) and (6). We find no error and affirm.
The record reflects that on April 23, 1997, Appellant physically attacked his wife, Carol Farmer. The couple had been married for approximately eighteen years at the time. For some time prior to the attack, Appellant had been demonstrating feelings of paranoia and had exhibited violent behavior toward Carol. On the date in question, Appellant and Carol went out to run some errands and eat lunch. Afterwards, they ended up driving around for a while. Appellant became agitated about financial matters and began demanding that Carol tell him the truth about some checks that she had evidently written. Appellant then drove out near Cave Springs and abandoned Carol on a dirt road; he eventually returned and persuaded her to get back into the van. They then started driving home.
As they approached their house, Appellant stopped the van and repeatedly backhanded Carol with his fists. He indicated that he was doing so to prove that he was crazy, like he claimed everyone thought. Carol tried to get out of the van, but Appellant had electronically locked all the doors. At one point during the attack, Appellant leaned Carol’s seat back and rolled over on top of her. He continued to hit her. He became increasingly agitated, hitting her in the face, pulling her hair, and biting her ear.
While still lying on top of her, Appellant grabbed underneath her clothes and started ripping her panties and pantyhose. He also pulled her pubic hair. Appellant told Carol that if she did not want to be with him, he would fix it so that she could not be with anyone else. He then took a knife, held it up where she could see the blade, and threatened to cut her. Again, he told her that he would fix it so that she could not be with another man. He then put Iris hand up inside her vagina and squeezed her. Carol stated that he shoved his hand so far up inside her that she could feel his fingernails on her cervix. Appellant used the knife to cut across the crotch of her panties and cut the leg of her pantyhose. All the while, Carol begged and pleaded with Appellant not to hurt her. Appellant then choked her to the point that she felt her body relax and thought she was going to die. He eventually let go of her, and she managed to get out of the van. Despite her temporary escape, the ordeal continued outside the van, where Appellant pushed her to the ground and began beating her with a tent pole and kicking her in the ribs. Finally, Carol was able to get away from Appellant and call for help.
During the trial, Appellant moved for a directed verdict on the charge of rape, arguing that there was no proof of deviate sexual activity involving an act of sexual gratification. In support of his motion, Appellant relied on Carol’s testimony that she did not think that the attack was sexual in nature or that it was Appellant’s intent to be sexually gratified by it. After considerable debate by counsel and a brief recess, the trial court denied the motion. At the close of all the evidence, Appellant again moved for a directed verdict on the charge of rape. Another lengthy debate by counsel ensued. The trial court ruled that under this court’s case law, the State was not required to present direct proof of sexual gratification. The trial court ruled further that the State had presented sufficient circum stantial evidence from which the jury could infer that the act involved sexual gratification. We affirm the trial court’s ruling.
Arkansas Code Annotated § 5-14-103 (Repl. 1997) provides in part that a person commits rape if he engages in deviate sexual activity with another person by forcible compulsion. Section 5-14-101(l)(B) defines “deviate sexual activity,” in part, as any act of sexual gratification involving the penetration of the labia majora of one person by any body member or foreign instrument manipulated by another person. “Sexual gratification” is not defined in the statute, but this court has construed the words in accordance with their reasonable and commonly accepted meanings. Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995); Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993); McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). This court has consistently held that it is not necessary for the State to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. Strickland, 322 Ark. 312, 909 S.W.2d 318; Warren, 314 Ark. 192, 862 S.W.2d 222; McGalliard, 306 Ark. 181, 813 S.W.2d 768; Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989) (per curiam).
Appellant does not question the soundness of the foregoing holdings, nor does he deny that there was sufficient evidence of penetration by forcible compulsion. Moreover, he concedes that sexual gratification can be and usually is a plausible reason for forcible penetration. Nevertheless, he argues that such is not the case here. Particularly, he contends that the only evidence presented on this element was Carol’s testimony that she did not think the attack was sexual in nature or that Appellant’s intent was to sexually gratify himself. He contends further that the evidence demonstrated nothing more than a physical battery on a sexual organ. We disagree.
The evidence below demonstrated that there were sexual overtones surrounding the attack. Carol testified that Appellant put his hand inside her vagina and squeezed her. While he was doing this, he was lying on top of her, ripping at her panties and pantyhose. He told her more than one time that if she did not want to be with him, he would fix it so that she could not be with another man. In other words, Appellant threatened to hurt Carol so that she would not be able to have sexual relations with another man. From these circumstances, the jury could have inferred that sexual gratification was a plausible reason for the penetration. Indeed, this evidence is stronger than that presented in Warren, 314 Ark. 192, 862 S.W.2d 222, upon which Appellant relies.
In Warren, the appellant was convicted of capital felony murder, with the underlying felony being rape. The medical examiner testified that the murder victim died from a combination of injuries, which included trauma, rupture, and perforation of both the vagina and the rectum. He opined that all the victim’s wounds could have been caused by a circular object such as a shovel handle. On appeal, Warren argued that the State failed to prove that the penetration of the victim’s vagina and anus was done for the purpose of sexual gratification. This court disagreed: “We have previously stated that ‘when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification.’ ” Id. at 196-97, 862 S.W.2d at 225 (quoting Williams, 298 Ark. 317, 321, 766 S.W.2d 931, 934).
We are not persuaded by Appellant’s attempt to distinguish this case from Warren on the basis that the victim here opined that her attacker was not motivated by a desire for sexual gratification. It is not apparent to us how Carol’s opinion testimony weakened the State’s circumstantial evidence on this issue. As the prosecutor argued below, it is difficult to know for certain in this day and age what is sexually gratifying to another person. Indeed, short of a confession or physical evidence, sexual gratification, like intent, is rarely capable of proof by direct evidence and must usually be inferred from the circumstances. See, e.g., Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Thus, Carol was in no better position than the jury to assess Appellant’s particular thought processes or motivation. Furthermore, the jury was free to believe or disbelieve any or all of her testimony. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Likewise, it was within the exclusive province of the jury to determine the weight and value of her testimony. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Accordingly, viewing the evidence in the light most favorable to the State, as we are required to do, we conclude that there is substantial evidence to support Appellant’s rape conviction. See Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).
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TOM Glaze, Justice.
Appellant Samuel Gilbert brings this appeal ice. conviction on five drug-related charges: 1) simultaneous possession of a firearm and a controlled substance; 2) possession of a controlled substance (methamphetamine) with intent to deliver; 3) possession of drug paraphernalia; 4) maintaining a drug premises; and 5) possession of a controlled substance (marijuana). For these convictions, Gilbert received a sentence of nine- and-a-half years in prison. Fie now asks us to reverse his convictions because, he argues, the trial court erred in denying his motion to suppress evidence seized pursuant to a stale search warrant, and because there was insufficient evidence to support his conviction for simultaneous possession of drugs and a firearm. The question of whether a search warrant can go stale before it is executed is an issue of first impression; therefore, we take jurisdiction pursuant to Ark. Sup. Ct. R. l-2(b)(l). We affirm.
On February 5 and 6, 1997, North Little Rock police officers used a confidential informant to negotiate two controlled buys out of a house on Batesville Pike in North Little Rock. While inside the house, the informant saw at least two handguns and a shotgun. On February 7, Officer Rick Dunaway obtained a warrant that could be executed at any time or the day or night because the police would be unable to gain safe and speedy access into the house. The warrant further provided that it was to be executed “within a reasonable time not to exceed sixty days.”
Forty-six days later, on March 25, 1997, the warrant was executed while Gilbert was present at the house. During the search, the officers found evidence of methamphetamine. In addition, the officers found an unloaded .41 caliber Smith & Wesson handgun in an open case on the living room floor; thirteen rounds of ammunition were nearby in a paper bag. Ten grams of methamphetamine were found in a plastic bag in Gilbert’s pants pocket.
Gilbert moved to suppress the evidence seized from the house, arguing that the search warrant had become stale by the time it was executed. At the hearing on the suppression motion, Officer Dunaway testified that the reason the police waited forty-six days to execute the warrant was because Gilbert was going and coming to and from the house at all hours of the day and night, and Dunaway never had the five or six hours necessary to assemble a SWAT team to conduct a high-risk search. He stated he wanted to execute the warrant with Gilbert at home to avoid any questions as to whom the drugs belonged. The trial court denied Gilbert’s motion.
At Gilbert’s bench trial, the State introduced the evidence seized pursuant to the warrant. Nick Dawson, a chemist for the State Crime Lab, testified that the residue found included methamphetamine and marijuana. At the close of the State’s case, Gilbert moved to dismiss the charge of simultaneous possession of drugs and a firearm, on the grounds that the firearm was in a case and unloaded. The prosecutor responded that the gun was located in the same room as Gilbert, and that he had more than ten grams of methamphetamine in his pocket. The court denied Gilbert’s motion.
Gilbert then testified in his own behalf, stating that he rented the house on Batesville Pike, but claimed he was not living there between February and March of 1997. He asserted that he only rented the North Little Rock house on the day of the search. On cross-examination, Gilbert averred that he did not know how the methamphetamine got in his pockets. At the close of his case, Gilbert renewed his motion to dismiss the simultaneous possession charge, and he also renewed his motion to suppress. The trial court again denied Gilbert’s motions, and found him guilty.
For his first point on appeal, Gilbert argues that the trial court erred in denying his motion to suppress the evidence seized from his house because the officers’ search warrant was stale. When this court reviews a trial court’s ruling on a motion to suppress, we review the evidence in the fight most favorable to the State and make an independent determination based upon the totality of the circumstances. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Further, this court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Id.
Rule 12.3(c) of the Arkansas Rules of Criminal Procedure provides that a search warrant shall be executed within a reasonable time, not to exceed sixty days. Although the question of whether information in a search warrant can go stale before its execution is an issue this court has not yet addressed, Arkansas case law has decided whether such information can become stale before the warrant is issued. For the most part, these cases hold that a delay in applying for a warrant can diminish probable cause, but that the delay is “not considered separately, [and] the length of the delay' is considered together with the nature of the unlawful activity and in the fight of common sense.” White v. State, 47 Ark. App. 127, 134, 886 S.W.2d 876 (1994). Moreover, the Arkansas Court of Appeals has held that when the criminal activity is “of a continuing nature,” an issuing magistrate may utilize his or her common sense regarding the relative staleness of the information on which the warrant is sought. Cardozo & Paige v. State, 1 Ark. App. 219, 646 S.W.2d 705 (1983). In Cardozo, the court adopted the following rationale:
The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: The character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc.
Cardozo & Paige, 1 Ark. App. at 222, 646 S.W.2d at 707. We agree with the foregoing reasoning. In short, circumstances surrounding the issuance of a search warrant are interpreted in light of common sense, and this analysis can be extended by analogy to the execution of a warrant.
In addition, while probable cause must exist at the time the warrant is issued, not at an earlier time, a lapse of time is not necessarily the controlling consideration. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992) (citing United States v. Stevens, 525 F.2d 33 (8th Cir. 1975), and United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 470 U.S. 415 (1986)). Other factors include the nature of the criminal activity and the type of property sought, considered in the light of common sense. Id. A delay is less significant when the search warrant lists items innocent on their face as opposed to per se inculpatory items that probably would remain in a suspect’s residence for a short period of time. Id.
Applying all of these factors to the case at hand, it is clear that the warrant had not become stale before it was executed. Gilbert was suspected of running a meth lab and maintaining a drug premises, which is the kind of activity that would not likely be dismantled quickly. The North Little Rock Police Department had the house under surveillance, as can be inferred from Officer Dunaway’s testimony that Gilbert was coming and going at all hours and was never home for the five or six hours the police needed. In these circumstances, the officers would have known if the activity had ceased. Although the items recited in the warrant were per se inculpatory (the warrant listed controlled substances, related paraphernalia, and any paperwork associated with selling the drugs), that is not the only factor to consider in examining the delay. Viewed in the light of common sense, it cannot be said that the warrant had become stale by the time it was executed; thus, the trial court did not err in denying Gilbert’s motion to suppress.
For his second point, Gilbert argues that the trial court erred in refusing to direct a verdict on the simultaneous possession charge. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the state. Dodson v. State, 341 Ark. 41, 14 S.W.3d 487 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id. Only evidence supporting the verdict will be considered. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000).
Ark. Code Ann. § 5-74-106 (Repl. 1997) provides that no person shall unlawfully commit a felony violation of § 5-64-401 (Repl. 1997) (manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance) or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401 while in possession of a handgun. § 5-74-106(a)(l). Section 5-74-106(d) provides that it is a defense that “the defendant was in his home and the firearm was not readily accessible for use.” Gilbert points out that in order to gain a conviction, the state must prove two elements: 1) he possessed a firearm, Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); and 2) a connection existed between the firearm and the controlled substance. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998); see also Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997) (some link between the firearm and drugs is required; mere possession of a firearm is not enough).
Gilbert testified that he was asleep on the couch when the officers entered the house to execute the search warrant, although Officer Dunaway testified that Gilbert was standing at the front door. Dunaway found a bag containing ten grams of pure methamphetamine in Gilbert’s pants pocket, and numerous drug-related items were found throughout the house. A .41 caliber Smith & Wesson handgun was found in an open case in the living room, and while the gun was unloaded, thirteen rounds of ammunition were in a nearby paper bag. Gilbert was the only person in the house.
Gilbert initially argues that there was insufficient evidence that he possessed the gun because he claimed he was in a different room than the one where the gun was found. However, in Darrough, the defendant was found in a bedroom, and a gun was located in the living room. Despite this fact, this court held sufficient evidence existed to prove the crime of simultaneous possession of drugs and a firearm. Darrough, 322 Ark. at 253-54, 908 S.W.2d at 327. Likewise, in Manning, the defendant was in the kitchen, and the gun was in a closet in the bedroom. Manning, 330 Ark. at 700-01, 956 S.W.2d at 186. Gilbert concedes that the house was small, and although the physical relationship between Gilbert and the gun is not entirely clear from the trial testimony, Gilbert, who admitted having rented the house, was the only person present in the house when it was searched. Thus, there was ample evidence he possessed the gun.
Next, Gilbert argues that there was no proof that the gun and the drugs were in any way connected. He asserts that though there might have been some drugs somewhat near because the house was small and everything was near to everything else, there was still no connection shown between the drugs and the firearm. However, the testimony of Officer Dunaway indicated that there were drugs and drug paraphernalia located in rooms throughout the house, including the living room, and drugs were also found in Gilbert’s pants. The gun was also in the living room, as were bills and receipts with Gilbert’s name and address on them on the coffee table. Viewing this evidence in the light most favorable to the State, there was sufficient evidence of a connection between the drugs and the firearm.
Finally, Gilbert argues that he can avail himself of the defense set out in § 5-74-106(d) — that he was in his own home, and the gun was unaccessible for use. However, while his attorney asserted at trial that Gilbert was in his own home in order to claim the statutory defense, Gilbert also testified that he lived in Pine Bluff and was absent from the house on Batesville Pike between February and March of 1997. This conflict in testimony is reflected in his brief where he repeats his testimony that he had been living in Pine Bluff in February and March of 1997 and two pages later asserts that he was at the house “rarely,” but then claims that he and the gun were “in his home.” In short, the record is conflicting on whether he was “in his own home,” as the statutory defense requires. However, even if that element of the defense was proved, Gilbert still failed to show the gun was inaccessible for use.
Gilbert argues that the gun was not accessible, because it was unloaded. The State responds that other factors made the gun accessible, namely, that it was in an open case, with ammunition close at hand, such that it could easily have been loaded. If we examine this evidence in the light most favorable to the State, as we are required to do, then it appears that there was sufficient evidence that the gun was accessible for use, and Gilbert cannot avail himself of the defense in § 5-74-106(d).
For the above reasons, we affirm Gilbert’s convictions.
Gilbert also moved to suppress on the grounds that the confidential informant was not reliable; however, this point is not a part of his appeal. | [
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Robert L. Brown, Justice.
This case involves a question of Arkansas law certified to this court by the Eighth Circuit Court of Appeals. See Grayson v. Ross, 454 F.3d 802 (8th Cir. 2006). The facts involve a pretrial detainee, Daniel Neal Grayson, who was incarcerated in the Crawford County Detention Center after his arrest for DWI and who died in jail within hours of his arrest as a result of methamphetamine intoxication and physical struggle, with idiopathic cardiomyopathy as a contributing condition.
Jerala Grayson, as the personal representative of Daniel Grayson’s estate, filed suit in Federal District Court for the Western District of Arkansas against Crawford County Sheriff Bob Ross, and three jailers, John McAllister, Chris Porter, and Roy Bass, in their individual and official capacities. She later amended her complaint to add Van Burén Police Officer Michael Sharum, in his individual capacity as a defendant, and dismissed Bass from the suit. Jerala Grayson’s complaint alleged that the defendants had violated Grayson’s constitutional rights to medical treatment and due process as secured by the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution, redressable under 42 U.S.C. § 1983, as well as violations of rights secured by the Arkansas Constitution, redressable under the Arkansas Civil Rights Act of 1993.
The federal district court granted summary judgment for Ross in his individual capacity and granted summary judgment for Ross, McAllister, and Porter each in their official capacities. The federal district court further granted summary judgment for Sharum after finding that he was entitled to qualified immunity. The federal district court also found that McAllister and Porter were entitled to qualified immunity for their intake of Grayson but not for their post-intake monitoring of him. The latter issue was decided by a jury verdict in favor of McAllister and Porter.
Jerala Grayson appealed the federal district court’s order to the Eighth Circuit Court of Appeals and argued, among other things, that the jury was improperly instructed on the appropriate standard under the Arkansas Civil Rights Act. Specifically, she contended that the conscious-indifference standard for serious medical needs should have been given to the jury as the Arkansas standard, rather than the federal standard of deliberate indifference. The Eighth Circuit affirmed on all points except for her argument regarding the proper standard under the Arkansas Civil Rights Act, which it held in abeyance pending this court’s response to the following certified question:
Whether the conscious indifference standard announced by this court in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998), affords greater protection to pre-trial detainees than the federal deliberate indifference standard.
Our authority to answer certified questions of law is found at amendment 80, § 2(D)(3), of the Arkansas Constitution. Jerala Grayson continues her argument in her brief before this court on the certified question that the conscious-indifference standard announced by this court in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998), is the Arkansas standard for claims under the Arkansas Civil Rights Act and should have been given in this case. She adds that it is a decidedly lower standard than the
deliberate-indifference standard applied by federal courts to claims arising under 42 U.S.C. § 1983. She urges, accordingly, that the federal district court erred in instructing the jury on the federal standard of deliberate indifference for purposes of the Arkansas Civil Rights Act.
Moreover, because Grayson was a pretrial detainee, she asserts that her claims should have been analyzed under the Due Process Clause of the Fourteenth Amendment and not the Eighth Amendment, which is concerned with punishment after conviction. She concludes that under the conscious-indifference standard, a plaintiff must show that the defendant knew or should have known that his conduct would result in injury, which involves an objective component, while the deliberate-indifference standard requires awareness of the facts, which is a subjective standard. See Kahle v. Leonard, 477 F.3d 544 (8th Cir. 2007).
Ross, McAllister, and Porter, who have filed a single brief on the certified question, contend that the conscious-indifference standard is the same standard or similar to the deliberate-indifference standard. They claim, in addition, that the conscious-indifference standard used by this court in Shepherd, supra, should not apply in this case because this court limited its holding in Shepherd to situations where the conduct of law enforcement officials allowed an inmate to harm third parties who were not detainees.
Similarly, Sharum, who has filed a separate brief on the certified question, argues that the conscious-indifference standard does not afford greater protection to pretrial detainees than the deliberate-indifference standard. He contends that the U.S. Supreme Court has held that a deliberate indifference to a prisoner’s serious medical needs constitutes a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. He adds that the Eighth Circuit Court of Appeals has repeatedly applied the deliberate-indifference standard to claims by pretrial detainees that their serious medical needs were not met. He concludes that the Eighth Amendment deliberate-indifference standard applies regardless of whether the plaintiff is a convicted prisoner or a pretrial detainee.
We begin our analysis with a discussion of the U. S. Supreme Court’s jurisprudence on this issue. In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth Amendment.” (Quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976).) The Court explained that a cause of action arises under 42 U.S.C. § 1983 when a prison guard is deliberately indifferent to an inmate’s serious illness or injury. See id.
The Court later defined the deliberate-indifference standard in Farmer v. Brennan, 511 U.S. 825, 837 (1994):
We hold .. . that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
The Court explained that “acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Id. at 836. The Court added that deliberate indifference is something more than gross negligence, yet less than acting with the purpose to induce harm.
The U.S. Supreme Court, furthermore, has emphasized that the Eighth Amendment’s proscription against cruel and unusual punishment does not apply to pretrial detainees. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983). In City of Revere, the Court wrote: “The State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” Id. at 244 (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 (1977)). The Court went on to say that before a formal adjudication of guilt has been acquired, there is no Eighth Amendment application. It added, nevertheless, that the Due Process Clause of the Fourteenth Amendment requires that pretrial detainees receive medical care while in the state’s custody. The Court explained that the due-process rights of pretrial detainees “are at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id.; see also Bell v. Wolfish, 441 U.S. 520 (1979) (holding that under the Due Process Clause, a pretrial detainee may not be punished prior to an adjudication of guilt, and in reviewing the constitutionality of conditions of pretrial detention, the inquiry is whether the conditions amount to a punishment of the detainee).
Though the issue has never been explicitly decided by the U.S. Supreme Court, the Eighth Circuit Court of Appeals has applied the deliberate-indifference standard to claims by pretrial detainees that their serious medical needs have been ignored or that state officials have failed to protect them from a serious risk of harm. See, e.g., Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006). Other circuit courts of appeal have held in similar fashion that deliberate indifference is the standard applicable to claims by pretrial detainees. See, e.g., U.S. v. Gonzales, 436 F.3d 560 (5th Cir. 2006); Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003); Burrell v. Hampshire County, 307 F.3d 1 (1st Cir. 2002); Danese v. Asman, 875 F.2d 1239 (6th Cir. 1989). This approach appears to be consistent with County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998), in which the U.S. Supreme Court said: “Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, ... it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial.”
This leads us to a preliminary question that this court must answer before addressing the certified question, and that is what standard has this court adopted, if any, relating to pretrial detainees under the Arkansas Civil Rights Act. The Arkansas Civil Rights Act provides in pertinent part:
(a) Every person who, under color of any statute, ordinance, regulation, custom, or usage of this state or any of its political subdivisions subjects, or causes to be subjected, any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Arkansas Constitution shall be liable to the party injured in an action in circuit court for legal and equitable relief or other proper redress.
Ark. Code Ann. § 16-123-105(a) (Repl. 2006).
In Shepherd, supra, this court held that deliberate indifference was not the appropriate standard to be used for injuries perpetrated by an inmate against third parties. We opted, instead, for the standard of conscious indifference and defined that standard as follows:
[I]n order to show that a defendant acted with conscious indifference, it must appear that he knew or had reason to believe that his actions were about to inflict injury, and that he continued in his course with a conscious indifference to the consequences of his actions, from which malice may be inferred.
Shepherd, 331 Ark. at 503-04, 962 S.W.2d at 790 (citing Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983)).
The Shepherd case, however, did not involve a pretrial detainee or any unmet medical needs of that detainee. It involved a claim under the Arkansas Civil Rights Act against Washington County, the Washington County sheriff, and a Washington County deputy. The deputy sheriff had transported an inmate from the county jail to a private medical clinic to receive medical care. While at the clinic, the inmate disarmed and killed the deputy sheriff and attempted to take the plaintiff as hostage. The plaintiff s husband intervened in the attack and was killed by the inmate. On appeal, the plaintiff urged this court to adopt a gross-negligence standard to be used in analyzing the conduct of the defendants, while the defendants argued that the federal standard of deliberate indifference was appropriate.
This court disagreed with both parties and adopted the conscious-indifference standard for the Shepherd facts. In doing so, we explained that it is not necessary for the plaintiff to prove that the defendants deliberately intended for the injury to occur. Rather, we said: “[i]t is enough if it is shown that, indifferent to consequences, the defendant intentionally acted in such a way that the natural and probable consequence of his act was injury to the plaintiff.” Shepherd, 331 Ark. at 504, 962 S.W.2d at 790 (quoting Nat’l By-Products, Inc. v. Searcy House Moving Co., Inc., 292 Ark. 491, 493-94, 731 S.W.2d 194, 195-96 (1987)). This court held that in order to show that a defendant acted with conscious indifference, the plaintiff must prove: (1) that the defendant “knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury”; and (2) that the defendant “continued such conduct in the reckless disregard of the consequences from which malice can be inferred.” Id., 962 S.W.2d at 790 (quoting Stein v. Lukas, 308 Ark. 74, 78, 823 S.W.2d 832, 834 (1992)).
A second case where this court referred to conscious indifference in connection with the Arkansas Civil Rights Act is Williams v. Arkansas Department of Correction, 362 Ark. 134, 207 S.W.3d 519 (2005). In Williams, an inmate filed a claim under the Arkansas Civil Rights Act and alleged that he had been denied prescribed medical care and treatment. He specifically alleged that because he was allergic to wool, he had been issued a prescription for a non-wool blanket from the Arkansas Department of Correction’s infirmary. Rather than receiving a non-wool blanket, he claimed that he was issued a wool blanket with cotton sheets sewed over it. He asserted that the blanket continued to expose him to wool, resulting in itching and rashes.
This court decided Williams based on the fact that the inmate did not establish that he had a serious medical need. Hence, the defendants’ actions regarding the wool blanket were never analyzed under the conscious-indifference standard. In discussing conscious indifference, we said:
In Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998), this court rejected the federal standard of “deliberate indifference” for cases arising under the Arkansas Civil Rights Act. Instead, this court opted for a standard of “conscious indifference,” as defined by this court’s previous opinions. In order to demonstrate that a defendant acted with conscious indifference, a plaindff must show that the defendant “knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in the reckless disregard of the consequences from which malice can be inferred.” Shepherd, 331 Ark. at 504, 962 S.W.2d 779 (quoting Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 732 S.W.2d 465 (1987), rev’d on other grounds, Quinn Companies, Inc. v. Herring-Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989)). Therefore, malice can be inferred either from conscious indifference to the consequences of one’s actions or from a reckless disregard of those same consequences. Id.
362 Ark. at 139, 207 S.W.3d at 523.
That discussion of conscious indifference in Williams, as applied in the Shepherd case, was correct. But what is important for the purpose of the question certified to this court is that this court did not hold in Williams that conscious indifference was the standard for all serious inmate health needs under the Arkansas Civil Rights Act. Nor did this court address the appropriate standard for pretrial detainees in Williams, since that circumstance was not before us. To the extent that the statement in Williams can be read to stand for the proposition that conscious indifference is the standard for all inmate claims under the Arkansas Civil Rights Act, we hold that that is not the case. The use of the conscious-indifference standard is limited to the facts of the Shepherd case.
The facts in the case at bar are altogether different from those in Shepherd and Williams. Grayson was a pretrial detainee, not an inmate serving a sentence, and, according to his personal representative, his serious personal health needs were unmet. This court, as a result, is presented with a question of first impression. We note again that the Eighth Circuit and other federal circuit courts of appeal have used the deliberate-indifference standard to analyze this issue in connection with pretrial detainees. Though this court is not called upon to answer the question of what standard applies for pretrial detainees under the Arkansas Civil Rights Act as part of the certified question, we adopt deliberate indifference as the proper standard.
Because we do not agree with the argument raised by Jerala Grayson that this court has adopted the conscious-indifference standard for pretrial detainees under the Arkansas Civil Rights Act, it is not necessary for this court to answer the precise question posed to us of whether conscious indifference affords more protection to the pretrial detainees than the federal standard. Conscious indifference is not the appropriate standard to be applied in the instant case for purposes of the Arkansas Civil Rights Act.
Certified question answered.
Though not exhaustive, our research has revealed no foreign jurisdiction that has adopted conscious indifference as the standard for serious unmet health care needs of detainees or inmates under state civil rights laws. | [
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Paul E. Danielson, Justice.
Appellant Vaughn Childers appeals from an order of the Pulaski County Circuit Court, which dismissed with prejudice his complaint for failure to comply with Arkansas Code Annotated section 16-114-209 (Repl. 2006). Childers raises two points of error: (1) that the circuit court erred by finding that the affidavit he submitted was insufficient to comply with section 16-114-209, and (2) that the circuit court erred by failing to determine that section 16-114-209(b), in its entirety, was unconstitutional. Appellee H. Louise Payne, D.C., cross-appeals, claiming that the circuit court erred by finding section 16-114-209(b)(3)(B) unconstitutional and by dismissing Childers’s original complaint without prejudice. We affirm the circuit court on direct appeal and hold that the cross-appeal is moot.
The record reflects the following facts. On March 29, 2004, Childers filed a pro se complaint against Payne for allegedly performing a chiropractic manipulation on him in a manner that fell beneath the standard of care for chiropractic medicine in Pulaski County, Arkansas, and resulted in permanent and severe bodily injury to Childers. Childers claimed that the actions occurred on or about March 29, 2002. On May 4, 2004, Payne filed a motion to dismiss the complaint because the affidavit required by section 16-114-209(b)(2) had not been filed. Counsel for Childers entered an appearance on May 5, 2004. Childers then moved for voluntary dismissal (nonsuit) and the circuit court, over Payne’s objection, entered an order dismissing the case without prejudice on July 30, 2004.
On January 5, 2005, Childers filed a second complaint against Payne, which made the same accusations and added his wife, Sharon Childers, as a plaintiff. The complaint stated that Mrs. Childers had experienced the loss of the social and marital relationship and companionship of her husband from the date of his injury. A letter written by C. Michael DuPriest, a Little Rock chiropractor, reflecting his opinions regarding Payne’s care of Childers, accompanied the complaint. Payne responded and argued that the letter failed to comply with section 16-114-209 and that neither the letter nor the complaint stated facts upon which relief could be granted. On March 9, 2005, Payne filed a motion to dismiss alleging that, after the complaint was filed, the required affidavit was not filed and that Childers’s claim was barred by the two-year statute of limitations.
On April 26, 2005, Childers responded to the motion to dismiss and argued that section 16-114-209 was unconstitutional, that the complaint and the letter constituted substantial compliance with the statute, and that the failure to attach the required affidavit was excusable neglect on the part of the attorney as he could not find the correct amendment to the statute to know what it required. DuPriest’s affidavit was attached to Childers’s April 26, 2005, response to the motion to dismiss. The circuit court held that the affidavit did not meet the requirements of section 16-114-209(b)(2) in that it did not state with particularity the expert’s opinion as to how the applicable standard of care had been breached or how that breach resulted in Childers’s injury. Rather than dismissing the case pursuant to section 16-114-209(b)(3)(B), the circuit court held that subsection (b)(3)(B) was unconstitutional, that Childers had made an effort to comply with the statute, and that Childers would have an additional fifteen days within which to file a proper supplemental affidavit. Childers declined to submit a new affidavit, and the circuit court entered an order dismissing the case with prejudice on April 28, 2006.
Arkansas Code Annotated section 16-114-209 states:
(a) If any action for medical injury is filed without reasonable cause, the party or attorney who signed the complaint shall thereafter, as . determined by the court, be subject to:
(1) The payment of reasonable costs, including attorney’s fees, incurred by the other party by reason of the pleading; and
(2) Appropriate sanctions.
(b) (1) In all cases where expert testimony is required under § 16-114-206, reasonable cause for filing any action for medical injury-due to negligence shall be established only by the filing of an affidavit that shall be signed by an expert engaged in the same type of medical care as is each medical care provider defendant.
(2) The affidavit shall be executed under oath and shall state with particularity:
(A) The expert’s familiarity with the applicable standard of care in issue;
(B) The expert’s qualifications;
(C) The expert’s opinion as to how the applicable standard of care has been breached; and
(D) The expert’s opinion as to how the breach of the applicable standard of care resulted in injury or death.
(3) (A) The plaintiff shall have thirty (30) days after the complaint is filed with the clerk to file the affidavit before the provisions of subsection (a) of this section apply.
(B) If the affidavit is not filed within thirty (30) days after the complaint is filed with the clerk, the complaint shall be dismissed by the court.
Ark. Code Ann. § 16-114-209 (Repl. 2006).
Childers’s most recent complaint was filed against Payne on January 5, 2005. As previously noted, section 16-114-209 instructs that a plaintiff in a medical-malpractice suit must provide an affidavit containing the expert’s familiarity with the applicable standard of care in issue, qualifications, opinion as to how the applicable standard of care has been breached, and opinion as to how the breach of the applicable standard of care resulted in injury or death, within thirty days of the filing of the complaint. Here, Childers failed to submit a proper affidavit within thirty days of his January 5, 2005, complaint.
Childers attempted to file DuPriest’s affidavit on April 26, 2005, along with his response to Payne’s motion to dismiss; however, it was not filed within thirty days of the complaint. See Ark. Code Ann. § 16-114-209(b)(3)(B). The circuit court found that the affidavit was improper, not because of the time at which it had been submitted, but because it was too vague. It further found that both DuPriest’s letter and affidavit failed to describe his familiarity with the applicable standard of care or how any injury to Childers was a proximate result of Payne’s failure to perform within that standard. Even still, the circuit court opted to give Childers an additional fifteen days to file a more specific affidavit.
Nonetheless, Childers declined to file an additional affidavit, and his counsel wrote a letter to the circuit court reflecting that decision: “Actually, it makes little difference because Mr. Childers will not file an amended affidavit, and very shortly Mr. Jennings will be filing a motion to dismiss which this Court will grant.” Following that letter, the circuit court entered its April 28, 2006, order which dismissed the case with prejudice after declaring the following:
1. By Order of this Court dated March 27, 2006, recorded on March 28, 2006, this Court determined the Affidavit of Dr. Du-Priest filed in this Court and cause does not comply with A.C.A. § 16-114-209, and the Court granted the Plaintiff fifteen (15) days from and after the entry of said Order to file an Affidavit which complies with A.C.A. § 16-114-209; and fifteen (15) days have passed f[ro]m and after entry of said Order and plaintiff has failed, neglected and refused to file a supplemental or amended affidavit.
We agree, for the same reasons stated by the circuit court, that the affidavit was deficient. Moreover, we have held that an appellant may not complain of an action of the trial court which he induced, consented to, or acquiesced. See Missouri Pac. R.R. Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944); see also Marcum v. Wengert, 70 Ark. App. 477, 20 S.W.3d 430 (2000). For these reasons, we hold that the circuit court was correct in dismissing Childers’s complaint.
In addition, we hold that Childers does not have standing to challenge the constitutionality of section 16-114-209(b)(3) because the circuit court did not apply the statute’s thirty-day time limitation to him. As for the remainder of section 16-114-209 (b), every legislative act carries a strong presumption of constitutionality and that presumption places the burden of proof on the party challenging the legislation to prove its unconstitutionality. Ark. Dep’t of Correction v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007). We hold that Childers does not present a convincing argument on appeal to support his position and to overcome the strong presumption of constitutionality. We have frequently stated that we will not consider an argument, even a constitutional one, when the appellant presents no convincing argument in its support, and it is not apparent without further research that the argument is well taken. See Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999). Accordingly, we affirm the circuit court’s dismissal of Childers’s complaint. Because we hold that the case was properly dismissed, we hold that Payne’s cross-appeal is moot.
Affirmed.
The case title on appeal includes Sharon Childers as an appellant; however, the circuit court dismissed her complaint as having been filed more than two years after the cause of action arose and that dismissal has not been challenged. To avoid confusion this opinion will refer only to the sole appellant,Vaughn Childers.
Payne argued to the circuit court that, because of the missing affidavit, Childers had not filed a proper complaint before the statute of limitations tolled and, thus, he was entided to a dismissal with prejudice.
Sectionl6-ll4-209(b) (3) (B) instructs a court to dismiss the complaint if the proper affidavit is not filed within thirty days of the complaint being filed with the clerk.
As previously noted, Childers had moved to voluntarily nonsuit his original complaint after Payne had filed a motion to dismiss arguing that the required affidavit had not been filed. | [
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Per Curiam.
Appellants Lisa Wagner, Individually, and as the Administratrix of the Estate of Stephanie Dawn Wagner, Deceased, Shirley Avey, and Destiny Enterprises, Inc., appeal the order of the Franklin County Circuit Court granting Appellee Pilkington North America, Inc.’s (Pilkington) motion for summary judgment and dismissing with prejudice all claims relating to Pilking ton. On appeal, Appellants raise four points for reversal: (1) the trial court erroneously granted Pilkington’s motion for summary judgment; (2) Arkansas should adopt the component-parts doctrine as a defense to claims against Pilkington; (3) if Arkansas adopts the component-parts doctrine, does the component-parts doctrine apply in this case; and (4) summary judgment should not have been granted where Appellants presented substantial evidence to establish genuine issues of material fact.
Because Appellants’ brief is not in compliance with Ark. Sup. Ct. R. 4-2(a)(7), we order rebriefing. Rule 4-2(a)(7) provides that arguments “shall be presented under subheadings numbered to correspond to the outline of points to be relied upon.” The purpose of this rule is to aid the court in following the arguments and to enable it to determine whether there is merit in any alleged point of error. Randle v. State, 257 Ark. 232, 516 S.W.2d 6 (1974) (decision under prior version of rule).
In this case, Appellants have presented four lengthy and detailed arguments for reversal in compliance with Ark. Sup. Ct. R. 4-2 (a) (3), requiring appellants to list and separately number, concisely and without argument, the points relied upon for a reversal of the judgment or decree. However, they have substantially failed to provide this court with an argument section in compliance with Rule 4-2(a) (7). Specifically, the arguments as currently briefed would require the court to “dig out” the particular paragraph or point which deals with a specific asserted point in a manner that would be overly burdensome and contrary to the purpose of our rules.
We order Appellants to submit a substituted brief that contains an argument section in compliance with our rules. Appellants are provided fifteen days from the date of this opinion to file a substituted brief and addendum to cure the deficiencies, at their own expense, in conformance with Ark. Sup. Ct. R. 4-2(a). Should Appellants fail to file a complying brief within the time allowed, the judgment may be affirmed for noncompliance with the rule. See Ark. Sup. Ct. R. 4-2(b)(3).
Rebriefing ordered.
Appellants’ claims against General Motors Corporation and Rhodes Chevrolet Company were dismissed without prejudice following Appellants’ voluntary nonsuit. Consequently, General Motors and Rhodes Chevrolet are not parties to this appeal. | [
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Paul Danielson, Justice.
Appellant Ira Busbee initiated this appeal after an order terminating his parental rights was entered by the circuit court on July 15, 2006, which additionally granted appellee Arkansas Department of Health and Human Services (DHHS) the power to consent to the adoption of L.B., Busbee’s minor child. Busbee appealed that order to the Arkansas Court of Appeals, alleging two points of error: (1) that the circuit court erred in finding that there was sufficient evidence and that it was in the best interest of L.B. to terminate his parental rights; and (2) that the circuit court erred by not dismissing the termination petition where the termination hearing was not held within ninety days. We granted certification of this case pursuant to Ark. R. Sup. Ct. l-2(b)(l) & (b)(4), as one involving an issue of first impression and an issue of substantial public interest.
In its certification memo, the court of appeals suggested that the issues for this court to determine were: (1) what orders are relevant to a termination hearing under Ark. Sup. Ct. R. 6-9(c)(1) (2006), and (2) whether the mere fact of inevitable delay is sufficient good cause to override the requirement of Ark. Code Ann. § 9-27-341 (d)(1) (Supp. 2005) that a termination hearing be held within ninety days of the filing of the petition to terminate. We accepted the court of appeals’ certification on March 6, 2007, but only with respect to what orders are relevant to a termination hearing under Ark. Sup. Ct. R. 6-9(c)(l).
The facts leading to this appeal are as follows. L.B. was adjudicated by the court to be dependent-neglected and came into DHHS’s care in April of 2005. The mother’s parental rights as to L.B. were terminated on December 7, 2005, by an order filed on January 4, 2006. At that point, the goal remained reunification with Busbee due to his partial compliance and progress. A permanency planning hearing was held on March 8, 2006, at which time the circuit court found that it was in L.B.’s best interest that the permanency goal be adoption. The circuit court also set the termination hearing for June 15, 2006. On March 16, 2006, DHHS filed the petition for termination of parental rights and sought authority to consent to permanent alternate placement and adoption of L.B. The day of the termination hearing, Busbee moved to dismiss the petition, arguing that the hearing was improperly held on the ninety-first day after the petition was filed. The circuit court determined that good cause had been shown to hold the termination hearing outside the ninety days and, on June 15, 2006, found that it was in L.B.’s best interest that Busbee’s parental rights be terminated. The order terminating Busbee’s rights was filed on July 13, 2006, which Busbee now appeals.
Pertinent to our review is DHHS’s allegation, in its responsive brief, that Busbee’s record is deficient because he did not include all relevant orders in the record. We note that, on July 1, 2006, this court adopted new court rules for appeals in dependency-neglect cases. See Ark. Sup. Ct. R. 6-9. Subsection (c)(1) of Ark. Sup. Ct. R. 6-9 states:
The record for appeal shall be limited to the transcript of the hearing from which the order on appeal arose, any petitions, pleadings, and orders relevant to that hearing, and all exhibits entered into evidence at that hearing.
(Emphasis added).
DHHS contends that the circuit court considered evidence such as previous findings, orders, and testimony in its determination that there was clear and convincing evidence to terminate Busbee’s parental rights. Furthermore, DHHS asserts that, because those things were incorporated and considered by the circuit court in making its final decision, the pleadings and orders in the case, including the adjudication order, any review orders, and the permanency planning order, are all relevant to the final termination order. Determining what must be included in the record for this appeal requires an interpretation of the rule and application of that interpretation to the facts in this case.
We construe our rules using the same means that are used to interpret statutes. See Aikens v. State, 368 Ark. 641, 249 S.W.3d 788 (2007). First, the rule is to be construed just as it reads, giving the words their ordinary and usually accepted meaning in common language. See id. There is no need to resort to rules of statutory construction when the language is plain and unambiguous. See id.
Ark. Sup. Ct. R. 6-9(c)(l) makes it clear that any petitions, pleadings, and orders relevant to the termination hearing are to be included in the record, as well as all exhibits that are actually entered into evidence at the hearing. For the circuit court to find, after the termination hearing, that it is in the best interest of the child involved to terminate the parental rights, it is required to find so by clear and convincing evidence. See Linker-Flores v. Ark. Dep’t of Human Servs., 364 Ark. 224, 217 S.W.3d 107 (2005). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. See id.
We have observed that when a termination order is appealed, the reviewing court must determine if the circuit court was clearly erroneous in finding that termination of the parental rights was proven in the best interest of the child by clear and convincing evidence. See id. A reviewing court cannot possibly determine whether a circuit court’s decision was clearly erroneous without the ability to review each order upon which a circuit court has based its final decision. A clearly-erroneous standard of review expressly contemplates a review of the entire record. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984).
For purposes of reviewing an order terminating parental rights, our rules limit the “entire record” to the transcript of the termination hearing from which the termination order on appeal arose; any petitions, pleadings, and orders relevant to the termination hearing; and all exhibits entered into evidence at the termination hearing. See Ark. Sup. Ct. R. 6-9(c)(l). Here, the circuit court, at the termination hearing, specifically incorporated into the record all the pleadings and exhibits from the adjudication forward. Therefore, the petitions, pleadings, and orders from the adjudication forward were clearly relevant to the hearing and to the final decision of the circuit court. Thus, they should have been included in the record for the reviewing court.
As previously noted, this case was certified to us by the court of appeals, and we accepted the certification for the sole purpose of addressing what constitutes orders relevant to a termination hearing. We have determined that all orders relied upon by the circuit court in making its final decision to terminate parental rights are relevant. In addition, we have held that the burden is on the appellant to bring up a proper record to demonstrate that the circuit court was in error. See Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986). Because Busbee has failed to include in the record all orders relevant to the termination hearing, we find that he failed to meet his burden of bringing up a proper record and, therefore, dismiss his appeal.
Appeal dismissed.
Glaze, J., would remand with directions to dismiss.
As of April 6,2006, L.B. had been living outside of the home for twelve months.
After reviewing the record before us, it appears that the circuit court assumed it was operating under the old rules at the hearing on June 15,2006; however, the final order was filed on July 13,2006, and the record on appeal was lodged September 25,2006. Therefore, the new court rules regarding dependency-neglect cases, which were adopted on July 1,2006, apply to the instant appeal. See In Re: Adoption of Rules 6-9 & 6-10 of the Supreme Court & Court of Appeals (Rulesfor Appeals in Dependency-Neglect Cases), 366 Ark. App’x 628 (2006) (per curiam) (holding that “[tjhese rules are effective July 1,2006 at which time appeals shall be commenced by filing the Notice ofAppeal and Designation of Record (Form 1) as set out in Rule 6-9”). Regardless, our conclusion would be the same under either set of rules. | [
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Jim Hannah, Chief Justice.
First Security Bank appeals a decision of the Johnson County Circuit Court, Probate Division, dismissing a will contest filed by First Security as guardian of the estate of Elna Leonard. The will contest was dismissed for failure to comply with Ark. Code Ann. § 16-62-105 (Repl. 2005) and Ark. Code Ann. § 16-62-109 (Repl. 2005). We affirm the circuit court’s decision that the will contest must be dismissed but do so based on a failure to comply with Ark. Code Ann. § 28-65-323 (1987). Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(6).
Facts
On February 5, 2004, Patricia Kay Harden filed a petition to probate the will of Paul C. Leonard. She also sought to be appointed as personal representative of the estate. On March 24, 2004, First Security filed a will contest as guardian of the estate of Elna Leonard. On July 26, 2004, the circuit court entered an order appointing Community First Trust Company as Administrator CTA, admitting Paul’s will to probate, and provided in the order that “the validity of the instrument offered for probate is being contested and the validity of the will shall be determined at a later date.” Elna passed away on September 12, 2004. Community First Trust filed a motion to dismiss the will contest asserting that Elna’s death terminated First Security’s authority to act on behalf of Elna’s estate, and that First Security failed to timely revive the will contest. On April 18, 2006, the circuit court entered an order dismissing First Security’s will contest for failure to comply with Ark. Code Ann. § 16-62-105 and Ark. Code Ann. § 16-62-109. This appeal followed.
Ark. Code Ann. § 28-65-323
First Security was prosecuting the will contest as the guardian of Elna’s estate when her death on September 12, 2004, terminated First Security’s guardianship. Ark. Code Ann. § 28-65-401(a)(2) (1987). Therefore, First Security could no longer act on behalf of the estate. Under the probate code, First Security could have had letters of administration issued to grant it authority to administer the estate of its deceased ward. Ark. Code Ann. § 28-65-323 (1987). First Security did not timely seek that authority. Arkansas Code Annotated section 28-65-323(a) (1987) provides as follows:
Upon the death of a ward, the guardian of his or her estate is authorized, as such, subject to the direction of the court, to administer the estate of the deceased ward after further letters are issued to him or her, after a hearing, pursuant to a petition for letters, testamentary or of administration, which has been filed not later than forty (40) days after the death of the ward, subject, however, to the provisions of § 28-40-116.
First Security did not file a petition for letters of administration until January 11, 2005, more than forty days after Elna’s death. Thus, First Security lost authority to act when it failed to timely obtain letters of administration as allowed under Ark. Code Ann. § 28-65-323.
Special Proceeding
The parties argue about whether the will contest could be revived under Ark. R. Civ. P. 25. Rule 25 is a rule of civil procedure providing for substitution of parties. The rules of civil procedure apply to civil actions. Ark. R. Civ. P. 2; Sosebee v. County Line Sch. Dist., 320 Ark. 412, 415, 897 S.W.2d 556, 558 (1995). “A will contest is not a civil action, but is a special proceeding.” Coleman v. Coleman, 257 Ark. 404, 408, 520 S.W.2d 239, 242 (1974) (citing Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936)); see also Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). Special proceedings are governed by statute. In re Adoption of Baby Boy Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997). Where a statute “creates a right, remedy or proceeding [that] specifically provides a different procedure . . . the procedure so specified shall apply.” Ark. R. Civ. P. 81(a).
Section 28-65-323 provides a specific statutory procedure granting a guardian of the estate forty days from the date of the ward’s death within which to file a petition for testamentary or administrative letters. If the requirements of the statute are met, the guardian may continue to serve after the death of the ward. First Security argues that it is seeking to “continue” its representation of the estate; “the court authorized the Bank to continue to pursue the will contest. . . when the court authorized the Bank, as guardian, to administer the estate of the deceased ward, Elna V. Leonard, pursuant to Ark. Code Ann. § 28-65-323.” Plowever, as already noted, First Security failed to comply with section 28-65-323 and obtained no such authority. In any event, First Security correctly asserts that it was attempting to “continue” its representation of Elna’s estate. No substitution of parties was at issue; therefore, Rule 25 was inapplicable. While the will contest should have been dismissed for failure to comply with section 28-65-323, we affirm because the circuit court reached the right result even if for the wrong reason. See Office of Child Support Enforcement v. Pyron, 363 Ark. 521, 215 S.W.3d 637 (2005).
Paul and Elna were husband and wife. A guardian of Paul and Elna’s estate was appointed on September 25,2002.
CTA is an acronym for the Latin phrase cum testamento annexo, meaning an administration granted when no executor of the will is appointed, or where the executor declines to act, is incompetent to act, or is not permitted to act. See, eg, McEachin v. People’s Nat’l Bank, 191 Ark. 544, 87 S.W.2d 12 (1935).
The period within which to seek the letters of administration ended on Monday, October 24, 2004, because the forty days ran on Saturday, October 22, 2004. Letters of administration were not issued until January 26,2005.
“Since the advent of our original Civil Code, there have been two types of proceedings in Arkansas law. One is a civil action; the other is a special proceeding.” Sosebee v. County Line Sch. Dist., 320 Ark. 412, 415, 897 S.W.2d 556, 558 (1995).
The circuit court decided the case based on a failure to comply with Ark. Code Ann. § 16-62-105 and Ark. Code Ann. § 16-62-109. However, section 16-62-105 concerned civil actions and was superseded by Ark. R. Civ. P. 25. See Deaver v. Faucon Props., Inc. , 367 Ark. 288, 239 S.W.3d 525 (2006); In re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark.App’x 616, 719 S.W.2d 436 (1986). Section 16-62-109 concerns time for revivor of a civil action and is likewise inapplicable in this special proceeding. | [
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McCulloch, J.
Appellant, L. F. Gardner, was indicted for the crime of perjury, and from a judgment of conviction he appeals to this court. The Attorney General confesses error.
The indictment charged appellant with having testified falsely concerning a material matter in a judicial proceeding pending id the police court of Fort Smith wherein said city of Fort Smith was plaintiff and said Gardner was defendant “charged with having been guilty of disorderly conduct and with having carried a certain pistol- as a weapon in said city of Fort Smith.”
The evidence shows, both by the record of the police court and by the oral testimony of witnesses, that appellant was arrested by a police officer of the city and taken before the police court, where he was put on trial for the offense of disorderly conduct in violation of an ordinance of the city; that the testimony introduced on the part of the plaintiff in that trial tended to show that appellant was guilty of disorderly conduct on a .railroad passenger train inside the city limits, and that he had a pistol which he drew and brandished; that he testified in his own behalf as a witness, and denied all of said charges, whereupon the police judge suspended said trial, and caused appellant to be surrendered to, the State authorities to be prosecuted on this charge of perjury.
Appellant demurred to the indictment, and it is urged that the demurrer should have been sustained, on the ground that the indictment alleges that appellant was on trial before the police court for two separate offenses, viz., disorderly conduct and carrying a weapon, at the time he testified falsely. If we concede that the indictment charges that appellant was being tried for two separate offenses at the same time, it does not follow that he could not be guilty of perjury for testifying falsely concerning a material matter in such irregular trial. If the police court had jurisdiction of the two offenses, even though they were improperly joined in the same proceedings, willful and corrupt false swearing to a material matter in the cause would make the crime of perjury complete. It is only where the court has no jurisdiction of the cause that the giving of such false testimony is not criminal. Buell v. State, 45 Ark. 336. Mere irregularities in the proceedings do not prevent the giving of false testimony from being criminal. 2 Bishop, Cr. Law, § 1028; Maynard v. People, 135 Ill. 416; State v. Lewis, 10 Kan. 157; State v. Peters, 107 N. C. 876; State v. Lavalley, 9 Mo. 824; State v. Rowell, 2 Vt. 28; Reg. v. Meek, 9 C. & P. 513.
Nor can we agree with the contention of counsel for appellant that the language of the indictment alleged two offenses charged against the defendant in the proceedings in the police court, and that the same was descriptive of the offense of perjury, and must be strictly proved, as alleged. In other words, that it is alleged that in the proceedings in which the false testimony was given the defendant was charged with two offenses — disorderly conduct and carrying a weapon — and that it devolved upon the State to prove it, whereas the proof showS that he was cn trial for only the offense of disorderly conduct. This position is untenable. The purpose of the part of the indictment descriptive of the offense is to fully apprise the accused of the charge made against him, and to protect him from a second prosecution for the same offense. 1 Bishop, Cr. Proc. § 507. Our statute provides that “no indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” Kirby’s Digest, § 2229. And the statute in reference to the crime of perjury provides that in indictments for that offense “it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath or affirmation was taken, averring such court or person to have competent authority to, administer the same, together with the proper averments to falsify the matter wherein the perjury is charged or assigned, without setting forth any part of the record,” etc. Kirby’s Digest, § 1970. Now, the indictment in this case sets forth with particularity the offense charged and the time, place and manner of its commission. It alleges that- the false testimony was given in a certain judicial proceeding pending on a certain day before the police court of the city of Fort Smith wherein said city was plaintiff and said Gardner was defendant. The only variance, if any, between the allegations and the proof is that the proof shows the accused was on trial for disorderly conduct, whereas the allegation of the indictment is that he was tried for disorderly conduct and carrying a pistol. The variance was immaterial, and did not affect the substantial rights of the defendant. It was not calculated to mislead him, and the trial upon this indiciment and proof operated as a bar to another prosecution for the crime- of perjury fo,r giving false- testimony in the judicial proceeding described in the indictment.
It is contended that the police court had no jurisdiction be cause the offense or offenses for which the defendant was on trial were not committed in the presence of the officer who made the arrest, and that no information was filed against the defendant nor warrant issued. Counsel argue that, under the statutes of this State, a police officer has no authority to make arrests without warrants for violations of city ordinances, except where the offense is committed in his presence; and that the offender against such ordinances can not be tried on oral charges except when the arrest is made by an officer in whose presence the alleged offense was committed. If the correctness of that contention should be conceded, still the police court had the power to hear and determine the question whether an offense had been committed, and, if so, whether or-not it had been committed in the presence of the officer so as to authorize an arrest and prosecution without warrant. So the giving of false testimony in such case would be perjury, even though it subsequently appeared that the arrest was improperly made. We do not mean to intimate that a police officer has no power to make an arrest except for offenses committed in his presence. We do not find it necessary to consider that question in this case.
The defendant asked, and the court refused to give, the following instruction to the jury. “8. There is no evidence in this case that disorderly conduct is made a criminal offense by the ordinances of the city of Fort Smith, and you have no .right to presume that such conduct on the part of the defendant was a criminal offense. You should therefore acquit the defendant, although you may believe that he swore falsely as to his conduct on said occasion.” This instruction should have been given.- The State offered no evidence showing that any ordinance of the city of Fort Smith prescribed a penalty for disordérly conduct. The indictment alleged, and the proof showed, that the accused was on trial for violation of a city ordinance when the false testimony was given. It was therefore essential, in establishing the materiality of the false testimony; to show that disorderly conduct was an offense under the ordinances of the city, for, if there was no valid ordinance creating such offense, the trial in the police court was unauthorized, and the false testimony was not material. Buell v. State, 45 Ark. 336.
The existence of such an ordinance must be proved like any other fact, as the courts can not take judicial notice of its existence and scope. Strickland v. Little Rock, 68 Ark. 483; 16 Cyc. p. 898, and cases cited.
Reversed and remanded for a new trial. | [
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Hill, C. J.
Appellee gave two orders to appellant which amounted to $1,446.29. One was a small mail order of $2.39 which was not a matter of controversy. The appellants could not fill all of the large order when it was received, and filled what it had in stock, amounting to $1,182.30, and stamped upon the invoice of the goods sent: “Goods short on this order we are out of at present, but will ship the same as soon as possible.” The goods were packed in 45 cases, and 45 cases in good order and apparently unbroken were received by appellee.
Appellee claims that there was a shortage of $231.90 from the bill of $1,182.30. Appellant claims that there was no shortage, but merely part of the order was not filed, and the appellee was only charged with the amount of the order which was filled, and was not charged with any goods not sent, and that the 45 cases contained the goods represented by the bill of $1,182.30. There was a sharp and irreconcilable conflict in the testimony on this issue.
Appellant asked and the court refused to give this instruction :
“1. You are instructed that it was the duty of the defendant, if it claimed a shortage, to report the same within a reasonable time; and if you find it failed to do so, you may consider that fact, together with all other facts in the case, as to whether or not it received all the goods with which it is charged.”
The facts bearing on this were: The goods were shipped June 23, 1903, and invoice and itemized account sent to appellee under that date. On October 7 appellee paid $600 on the bill, and on November 12 paid $300 on it, and on November 18 for the first time claimed a shortage, and then sent a check for $50.46 which appellee claimed balanced the account. It is well settled that when an itemized account is rendered objection must be made within a reasonable time, or it becomes an account stated and subject to attack for fraud or mistake only. Lawrence v. Ellsworth, 41 Ark. 502; Weed v. Dyer, 53 Ark. 155; 1 Am. & Eng. Enc. Law (2 Ed.), pp. 448 and 449. This rule originated in the custom of merchants, and is in some jurisdictions confined to merchants; and its force is lost if extended beyond business men in business dealings. The retention of the account without objection is evidence of more or less weight according to the length of time, the business, character, education of the parties and all the circumstances of the case. 1 Am. & Eng. Enc. Law (2.Ed.), pp. 449 and 450; 1 Elliott on Evidence, § § 108, 231.
The instruction in question correctly applied this rule to the facts of the case, so far as it could be applied without instructing, on the weight of the evidence, and should have been given. It is error to .refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given, unless it appears that prejudice has not resulted. St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134; St. Louis, I. M. & S. Ry. Co. v. Robert Hitt, 76 Ark. 227; 11 Enc. Pl. & Pr. 181 et seq. The general charge was a full and clear presentation of the case to the jury, as far as it went, but did not touch this phase of it; and as there was a sharp conflict .in the evidence, it can no.t be said that depriving appellant of the benefit of the law as stated in this instruction was not prejudicial.
The judgment is reversed, and cause remanded. | [
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McCulloch, J.
The petitioner, W. M. Meeks, seeks to have this court review, on certiorari, the proceedings of the chancery court of Polk County wherein he was adjudged to be in contempt of said court for failure to obey its final decree in a cause in which he was a party.
The Ferguson Lumber Company brought suit in said court against Standridge & Meeks, a partnership composed of petitioner and S. L. Standridge, and also against the Walker Lumber Company, to recover of Standridge & Meeks the sum of $1,281.06 debt, and to have a ljen declared in favor of the plaintiffs on a lot of lumber which said Standridge & Meeks had manufactured for the plaintiffs, but which had, as was alleged, been wrongfully sold to Walker Lumber Company.
The court rendered a final decree in the cause in favor of the plaintiffs against Standridge & Meeks for recovery of the amount of the debt, but found that the Walker Lumber Company was an innocent purchaser of the lumber without notice of the plaintiff’s rights therein. The court further found that, of the purchase price paid by the Walker Lumber Company for the lumber, Standridge & Meeks had the sum of $287 in their possession at the time of the final hearing, and ordered them to pay said sum over to plaintiff within ten days to be credited on said debt. Standridge & Meeks prayed and obtained an appeal to this court. They failed to comply with the decree of the court with reference to the payment of said sum of $287, and the petitioner, Meeks (Standridge not being found), was cited to appear and show cause why he should not be punished for contempt in failing to obey the orders of the court. On the return day of the citation the petitioner appeared, and on hearing of the matter he was adjudged to be in contempt of the court and committed to jail until he should purge himself of the contempt or until the further orders of the court.
It is first contended on behalf of the petitioner that imprisonment for debt in a civil action is the effect of the order of commitment, and that this is forbidden by the Constitution (art. 2, § 16, Const. 1874).
There are some courts which hold, in view of constitutional provisions forbidding imprisonment for debt, that disobedience of an order for payment of money under a judgment or decree can not be punished as a contempt; but, according to the decided weight of authority, an order directing the payment of specific funds adjudged to be in the possession or control of the person at the time of the trial may be enforced by contempt proceeding, and punishment may be inflicted for disobedience of the order. State v. Becht, 23 Minn. 411; In re Milburn, 59 Wis. 24; Leach v. Peabody, 58 Vt. 485; Eikenberry v. Edwards, 67 Iowa, 619; Pritchard v. Pritchard, 18 Ont. 173; Ex parte Cohn, 55 Cal. 193.
In one of the cases cited above the Supreme Court of Min-< nesota said: “In the case at bar the imprisonment is for the contempt in refusing to obey an order of the court. It is true that the order relates to the debt evidenced by the judgment against the relator, but this in no way alters the fact that the imprisonment is for the contempt, not for the debt. And the contempt does not consist in the relator’s neglect or refusal to pay the debt, but in his disobedience of the order directing him to hand over certain property to the receiver. The fact that the property in question is to be handed over for the purpose of being applied to the payment of the judgment is in no way important. The commitment is, nevertheless, in no proper sense imprisonment for debt.”
The Supreme Court of Wisconsin, in the Milburn case, supra, said: “The attempt to conceal and keep from the receiver money and choses in action, thus ordered to be delivered up, and upon which the creditor, by such equitable levy, had procured such equitable lien, was not only a fraud upon the rights of the' creditor, but a contempt for the authority of the judge. The mere fact that the contempt was in proceedings supplementary to a judgment founded upon a contract did not make it any the less a contempt, nor prevent its being punished as such.”
It may be that the decree of the court -finding the specific funds arising from sale of the lumber to be in the hands of petitioner and his co-partners and directing them to pay it over to the plaintiff in that suit was erroneous. We do not know. We are not reviewing that proceeding now, and have not before us the evidence upon which the chancellor based his decree. The court had jurisdiction to render such a decree, and the fact that it was erroneous would not excuse disobedience on the part of those who were bound by its terms until reversed. Russell v. Mohr-Weil Lumber Co., 102 Ga. 563; Tolman v. Jones, 114 Ill. 147; Jenkins v. State, 59 Neb. 68; Forrest v. Price, 52 N. J. Eq. 16; Vanvabry v. Staton, 88 Tenn. 334.
Nor does the fact that the decree has been appealed from excuse disobedience until .the same has been superseded in the manner provided by law. The appeal alone does not stay proceedings under the decree, and as long as the decree remains in force its terms must be obeyed.
It is also contended that the order to pay over the money within ten days curtailed the period of one year given by statute for taking an appeal. The decree was not superseded during the time given for taking an appeal, and the pendency of the right of appeal did not stay the enforcement of the decree. The enforcement can, at any time, be superseded by giving bond as provided by law.
The petitioner appeared in response to the citation and filed his response, setting forth, among other grounds for his failure to obey the order of court, a statement that he had, within ten days after the date of the decree, delivered the money in question to his partner, Standridge, with directions to take it to Mena, the county seat, and pay it into the registry of the court, but that said Standridge had disobeyed said direction and fled the country. This response set forth a good excuse for failure to pay over the money, but we have no evidence before us to substantiate the plea.
The order of the court adjudging petitioner to be in contempt, and committing him to jail recites that the matter' was heard upon oral testimony, but that testimony is not brought before us for our consideration, and we must presume that it sustained the finding of the chancellor. Casteel v. Casteel, 38 Ark. 477. It is true that there appears in the transcript what purports to be the testimony of the petitioner and another witness introduced by him which the clerk certifies to be. the substance of the evidence as he remembers it. This is not the way to bring oral testimony upon the record in a chancery case. It can be dpne only by embodying the evidence in the record entry or in bill of exceptions certified by the chancellor, or by reducing it to writing at the time and filing same as a part of the record.
This rule applies to contempt proceedings except in cases where the acts constituting the contempt occur in the presence of the court, in which case .the facts should be set out in the judgment. Ex parte Davies, 73 Ark. 358.
No error appearing in the record, the prayer of the petition is denied, and the judgment is affirmed. | [
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Hill, C. J.
This is a suit against the heirs at law. of Wm. .Nelson, and grows out of these facts:
The appellant insurance company issued a policy of fire insurance to Wm. Nelson on the 6th of March, 1896, covering a barn and certain personal property. The barn was destroyed by fire April 11, 1896. Nelson made proof of loss, and it was subsequently adjusted at $1,300, which sum the insurance company paid on April 28, 1896, being $1040 for the barn and $260 for the personal property.
In the application for the policy Nelson stated that he 'was the sole owner of the property to be insured, and that the title to the land on which the buildings stood was in his name; and he tnade these statements warranties. He made similar- statements as to the ownership when the loss was adjusted.
Nelson had, prior to said time, conveyed the land to three of his minor children, and had the deed recorded. The answer alleges.this was done in the nature of a distribution of his estate, but that he retained dominion and control of the property, and his minor children resided with him. It is also shown that the defeat of certain lawsuits for personal injuries, at one time pending against him, may have been the inducing cause for the transfer. Whatever may have been the reason, the title stood in the name of the children when the application was made, the policy issued, the fire occurred and the loss paid. Wm. Nelson died on the 7th of October, 1897. His will was probated, and letters testamentary granted to Peter Nelson on the 24th of October, 1897.
In December, 1899, the secretary of the insurance company, which is domiciled at Little Rock, received a letter from an attorney in Clay County, asking what representations Nelson had made in his application as to the ownership of the property insured. Litigation had broken out among Nelson’s heirs, and this attorney was wanting evidence of Nelson’s statements to use in that litigation.
This information led to the company discovering the fact that the statements in the application, and like statements in proof of loss, that the title stood in him were not true. The secretary submitted the matter to the company’s attorney, and after investigating the facts further the attorney for the company presented on the 14th of July, 1900, the claim of the insurance company for the refunding of said $1,300 to the executor of Wm. Nelson’s estate, who disallowed it. On the 29th of November, 1900, the insurance company instituted suit against Peter Nelson as executor, and on the 28th of May, 1902, complaint was amended so as to make Peter Nelson individually as an heir at law of Wm. Nelson and the other heirs at law of Wm. Nelson parties. That suit was dismissed, and within a year it was renewed — the present suit — alleging the closing of the administration and that the heirs at law, who were the parties defendant, had received from the estate of Wm. Nelson more than the sum sued for.
Many questions are presented and discussed in brief and at bar, but only one will be discussed here, for it is sufficient to be decisive of the case.
Whether Wm. Nelson was guilty of deceit entitling the insurance company to recover against him, or whether he was liable to it in an action for money had and received, need not be decided; for, if these points are decided in favor of the insurance company, it is barred by the statute of rionclaim. Kirby’s Digest, § no. Appellant, to defeat the operation of this statute, shows that the fraud of Nelson (treating the mistake as such, although that is a contested point) was not discovered until more -than two years after the grant of letters testamentary on his estate, and that the statute could not run until the discovery of the fraud, and that started, not the statute of nonclaim which had run its course, but the general statute of limitation.
There are two lines of decisions on the starting point of the statutes against frauds, one holding, .where the fraud is consummated, that it operates as a continuing cause of action until discovery, when the statute starts. Under this theory the fraud is presumed to conceal itself. The other theory is that where the fraud is consummated the statute starts unless there is concealment or a continuation of the fraud preventing discovery. The authorities on these views may be found in briefs of counsel. But this conflict does not enter here. If the harshest rule be invoked against Wm. Nelson, his concealment of the fraud terminated at his death. Then other rights intervened; and to protect those rights the statute of nonclaim came into play on the grant of letters, and it cleared the estate of unpresented demands except that class described in Walker v. Byers, 14 Ark. 246.
Inchoate and contingent claims or demands or dormant warranties accruing after two years from grant of letters may not be enforced against the administrator or executor, but may be enforced against the heir or distributee from the property received by him from the ancestor; but all claims or demands which the statute contemplates shall be exhibited to the executor or administrator within two years are claims capable of being asserted in a court of law or equity existing at the death of the deceased, or coming into existence within two years, and they are barred, whether due or not, if running to certain maturity, unless presented within two years. Walker v. Byers, 14 Ark. 246. It has been fifty-three years this month since Mr. Justice Scott worked out the above construction of the statute of nonclaim, and it has been followed times innumerable since, never questioned, never added to nor taken from.
Counsel for appellant seek to bring their case within the exceptions, and argue that, until the fraud was discovered, it was like an unbroken covenant for title; and an action arose only after discovery, like it arose only on breach of the covenant. The argument is unsound for many reasons; one that the discovery of the fraud is only important on the question of limitation, and has nothing to do with the cause of action; it merely suspends, not creates, an action. If the argument was good as to Wm. Nelson, it would not be good as against his heirs. They have not concealed the fraud. This action is against them, to the extent of property fallen to them, and there is nothing to stop the running of the statute, which should be worked against them. If the fraud was concealing itself, or was actively concealed, there, would be another question, if this suit was against Nelson; or, even in its present form, it would present a different aspect if there were elements of concealment in it. But such elements are conspicuous by their absence. Nelson recorded the deed to his children. One of his children contested his will, and the fact of the deed to these children being made was litigated in the courts, and talked on the countryside, during the whole period the statute of nonclaim was .running.
Any view that may be taken of the case precludes the maintenance of the action after the statute of nonclaim ran.
The judgment is affirmed. | [
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Riddick, J.
This is an action on contract brought by W. E. Kittrell for the use of his wife, L. W. Kittrell, against the Beekman Lumber Company, to recover damages for breach of contract. The facts, briefly stated, are as follows:
W. E.. Kittrell is the -husband of L. W. Kittrell. Mrs. Kittrell was in 1902 the owner of a planing mill plant located in Ashley County. The Beekman Lumber Company of Kansas City, Missouri,, was engaged in buying and shipping lumber in that county. In that year W. E. Kittrell made a written contract with the Beekman Lumber Company, by which he agreed to dress lumber for that company for certain prices named in the contract, ranging from $1.00 to $3.00 per thousand -according to the kind of lumber and the amount of work to be done on it. The contract contained the following stipulation on the part of Kittrell: “I agree furthermore to dress lumber exclusively for the said Beekman Lumber Company, except in case of the inability of the Beekman Lumber Company to keep at least one machine stocked, and such custom dressing as not to interfere with the interest of the Beekman Lumber Company. I agree also to run the mill at its full capacity eleven hours a day, except in case of unavoidable accident, said capacity to be at least 15,000 feet per day of eleven hours.”1
On the part of the lumber company there was this stipulation: “The Beekman Lumber Company agrees to furnish the said W. E. Kittrell sufficient lumber to keep said planing mill plant running at its full capacity during this contract, except in cases of delay beyond control of the said Beekman Lumber Company.”
The contract provided that it should last-four months from May 24, 1902, allowing the lumber company the privilege of extending it to January 1, 1903. The contract was not extended, though the lumber company afterwards furnished lumber for Kittrell to plane. This contract was made in the name of W. E. Kittrell, but he brought this suit in his name for the use and benefit of his wife, L. W. Kittrell, and testified that she was the owner of the property, and that the contract was made for her benefit. The complaint contained two causes of action set out in different paragraphs. The first paragraph set up a failure of the defendant company to furnish lumber sufficient to keep the planing mill plant running at its full capacity, by reason of which failure plaintiff alleged damages in the sum of $1,720.28. The second count was an action to recover for planing lumber done after the expiration of the written contract referred to, and for which plaintiff claimed the sum of $314.95. as due and unpaid.
The defendant filed a demurrer to the complaint on account of the misjoinder of actions, which was overruled. It also filed an answer denying the material allegations of the complaint.
The plaintiff recovered judgment for $925 on the first count in the complaint, and for $314.95 on the second with interest, and defendant appealed.
There were a number of exceptions saved to rulings of the circuit court at the trial, but we shall notice only those points referred to in the brief of counsel.
The first contention is that there was a misjoinder of actions. But this is clearly not tenable, for the two causes of actions sued cn arose on contracts, and each of them affected all the parties to the action, and under our statute could be joined. Kirby’s Digest, § 6079.
The next contention is that Mrs. Kittrell could not bring this action for the reason that she was not a party to the contract with the Lumber Company. But the suit was brought in the name of W. E. Kittrell for the use and benefit of Mrs. Kittrell. As the contract was made in the name of W. E. Kittrell, he had the right to bring the action in his own name, even though it was for the benefit of his wife. Kirby’s Digest, § 6002. His stating that the action was for the use and benefit of Mrs. Kittrell did not affects the rights of the defendant company, nor prejudice it in any way, and furnishes no ground to reverse the judgment.
It is true, as counsel for appellant says, that in an action against a principal the declarations or admissions of tfie agent are not competent to prove the agency, but this rule does not refer to the testimony of the agent but to his unsworn declara tions. An agency may be established by the testimony of an agent, as well as that of any other witness who has knowledge of the facts. The testimony of Kittrell that his wife was. the owner of the planing mill and interested in the contract was not contradicted, and it was therefore not improper to make her a party, though,, as before stated, it was not necessary.
The circuit judge instructed the jury that, if the defendant could have furnished a sufficient quantity of lumber to have kept the planing mill plant of plaintiff running at its full capacity, and failed to do so, the plaintiff was entitled to recover such sum as the evidence shows that he would have earned had the defendant performed its contract and furnished such lumber. Counsel for defendant contends that plaintiff can not recover for loss of profits in a case of this kind, and that the theory on which the case was presented was therefore erroneous.
The. rule in reference to the recovery of profits is thus stated ín a recent work: “The recovery of profits as in the case of damages for the breach of contracts in general depends upon whether such profits were within the contemplation of the parties at the time the contract was made. If the profits are such as grow out of the contract itself, and are the direct and immediate result of its fulfillment, they form a proper item of damages.” 13 Cyc. 53, 54. Such damages “must be certain both in their nature and in respect to the cause from which they proceed. It is against the policy of the law to allow profits as damages where such profits are remotely connected with the breach of contract alleged, or where they are speculative, resting only upon conjectural evidence or the individual opinion of parties or witnesses.” 13 Cyc. 53; Spencer Medicine Co. v. Hall, 78 Ark. 336.
Now, in this case the plaintiff had entered into a contract to perform certain work for the defendant, which he was prevented from doing, as the jury found, by the fault of the defendant; and we are of the opinion that the profits which the evidence makes reasonably certain that plaintiff would have made had defendant carried out its contract may be recovered. Spencer Medicine Co. v. Hall, 78 Ark. 336.
Again, it is said that the prices for work to be done in finishing the lumber varied from $1 to $3 per thousand feet according to the kind of finishing done, and that defendant had the right to select this work, -and could have chosen the lowest price. But the lowest price $1 per thousand was to be charged for ripping, and defendant would not have complied with its contract, had it furnished lumber for ripping 'only. The contract required that, except in cases of delay beyond its control, it should furnish sufficient lumber to keep the planing mill plant running at its full capacity. Now, the plant included two planing machines, besides an edger and resaw machine, and it is evident that this plant could not have been run at its full capacity if lumber had been furnished for ripping only, for the planing machines would have been left with nothing to do. The main purpose of the contract was to dress lumber, and plaintiff testified that the average price under the contract for the lumber actually furnished by defendant was $2.45 per thousand. He also testified that on the whole contract defendant was over eight hundred thousand feet short on the lumber to be furnished, and the amount of the verdict shows that the jury did not allow much over $1.50 per thousand for this shortage. Judging from the evidence, this amount was not excessive.
Again, it is said that it was the duty of the plaintiff to lessen the injury, and that he could have purchased lumber to keep his plant running. But there was no contract* to purchase lumber, and it was no part of plaintiff’s duty to do so. It is true that he should not have allowed his plant to remain idle if he could have obtained work for it to do. Plaintiff testified that when defendant failed to furnish sufficient lumber he did make an effort to obtain lumber from other parties, and obtained some, but that defendant objected, and claimed that under the contract plaintiff must dress lumber exclusively for defendant, and that on account of this objection plaintiff made no further effort to obtain lumber from other parties. If defendant objected to plaintiff’s dressing lumber for other parties, it has now no right to complain that plaintiff refrained from doing so. Whether such objection was in fact made was a question for the jury.
The court at the request of the plaintiff told the jury that the clause in the contract which reads “except in cases of delay beyond the control of the Beekman Lumber Company” means the act of God, or some calamity beyond the control of the Beekman Lumber Company. For the defendant he told the jury that the burden of proof was on plaintiff to show, not only that defendant had failed to furnish the lumber as required by the contract, “but also that such failure was caused by circumstances not bevond the control c>f the defendant.” Counsel for defendant objects to the use of word “calamity” in the instruction given at request of plaintiff, but we think, when the two instructions on this point are read together, it is clear that the word “calamity” was used in the sense of mischance or misfortune,, and that, when these two instructions are read together, there could be no misunderstanding of the court’s meaning.
Again, the defendant asked the court to tell the jury that, as the allegations contained in its counterclaim had not been controverted by any reply, these allegations must be taken as true. The court refused to do so, and permitted the plaintiff to file a reply to the allegations in the counterclaim. As evidence was introduced by plaintiff on the trial tending to rebut the allegations of the counterclaim as if they were denied, it was clearly within the discretion of the presiding judge to permit plaintiff to file a formal reply thereto, though this was after the evidence had been introduced.
No objection to any other instruction is made in the brief of appellant, and, as we have said, the objections made are, in our opinion, not sound.
There was ample evidence on which the jury might well have found a lower amount, or even have returned a verdict in favor of the defendant. But they did not do so, and we are not able to say that their verdict in favor of plaintiff, though it seems liberal, is without evidence to sustain it. On the contrary, we think, under the conflict of the testimony, it was within the province of the jury to find in favor of the plaintiff for the amount of then-verdict. Being of the opinion that the objections to the rulings of the presiding judge pointed out by counsel for defendant are not tenable, it follows that the judgment should be affirmed. I.t is so ordered. | [
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Hill, C. J.,
(after stating the facts.) . The first question discussed is the alleged error of the court in permitting an amendment of the pleadings after the evidence was in, so as to give the appellee the opening and closing argument before the jury. The appellee had denied in her answer that the estate of Barton Brothers .in bankruptcy was wound up. The other defenses were of no consideration, duress and compounding of a felony, matters which would cast the burden of proof upon the defendant. The only issue that cast the burden of proof upon ■the plaintiffs was the denial that the bankruptcy proceeding was terminated,, so as to bring to maturity the obligation.
At the close of the testimony, after the appellants (plaintiffs) had made the proof to sustain their allegation to that effect, the appellee asked the court for leave to amend her pleadings by striking out the denial of that fact, in order to give them the opening and conclusion. The court permitted this, and that action is assigned as error. In- Excelsior Manufacturing Co. v. Owens, 58 Ark. 556, almost exactly the same situation was presented. In that case the court refused to allow the amendment and refused to give the opening and conclusion to the party seeking to amend his pleadings at that time, saying that the proof had already been made and the concession amounted to nothing. The amendment of pleadings was a matter within the sound judicial discretion of the court, and the court’s action will not. be reversed unless there is an arbitrary abuse of such discretion. Section 6190 of Kirby’s Digest fixes that the opening and conclusion of the argument shall be given to the party upon whom the burden of proof rests under the pleadings; hence the opening and conclusion is a matter to be determined by the pleadings in the case. In the Owens case this court affirmed the judgment, thereby declining to reverse the circuit judge for his refusal to permit an amendment to the pleadings which shifted the burden of proof; and in this case the court must also decline to reverse for permitting the amendment, because it was a matter within the discretion of the court, and it is not apparent that there was any abuse of that discretion. Here the real issue of the case was not as to the winding up of the bankruptcy proceedings and the maturing of the note, but was whether or not the consideration for the note was the securing immunity from prosecution of W. P.' Barton’s sons. The court evidently considered it better for the burden of proof to rest where it really was upon the whole case, and not upon an insignificant phase of the case. At any rate this court is unable to see any abuse of discretion in permitting the amendment.
The next error assigned is the refusal to give an instruction that, if the .obligation sued upon was .executed for the consideration that Beal & Doyle Dry Goods Company would purchase the stock of Barton Brothers when sold at public sale and re-sell the same to W. P. Barton upon easy terms, this would be a valid consideration, and the finding should be for the plaintiffs. There was very little evidence to support an instruction along this line, and the most that can be said is that Mr. Beal, of Beal & Doyle Dry Goods Company, stated to Mr. Hamby that, if the arrangement was made by which. W. P. Barton guarantied the debt of his sons, he would make this purchase and sell the goods back to W. P. Barton; but that was all contingent upon the execution of the guaranty of the sons’ debt. If, in fact, the guaranty was made to suppress the prosecution, the fact that a legal consideration also entered into it would not help it.
There is another reason why the instruction should not have been given. This was a trial, by agreement, of the two suits in one, and this would have made the action of Mr. Beal, which would doubtless have been binding upon his corporation, also bind the bank, and there is no evidence that the bank was in any way connected with any such proffer, and this instruction does not discriminate between the two.
The next point urged is that there was error in modifying an instruction which stated that if, at the time of the execution of the obligation in question, a trustee of the estate of Barton Brothers had not been elected, and Barton Brothers had not made, and at .that time were not required to make, any schedule of their assets, they had committed no offense under the bankrupt act. The change made by the court was merely by adding the words “and delivery” after the word “execution,” and making the instruction read that this condition was to exist at the time of the execution and delivery of the obligation, which was a different point in the sequence of events. This is wholly unimportant in this case, because it does not make any difference whether the sons had or had not been guilty of a crime under the bankruptcy law when the agreement was executed. This matter will be discussed in another connection.
The next error assigned was the refusal to give several instructions giving weight to the fact that Hamby represented W. P. Barton, as well as the appellants. If, as a matter of fact, I-Iamby was employed by the appellants to secure the obligation in question from Mr. Barton, and in the course of that employment made representations to Mr. Barton concerning the prosecution of his sons which induced him to make the obligation in question, of course, these representations are binding upon his employers, these appellants, and that fact is not changed by the further fact that Plamby was also employed by Mr. Barton to represent and protect his sons. It should not have changed the effect of representation that appellant’s attorney, who induced Mr. Barton to make this contract, was also his own attorney in the matter referred to; and probably the relation gave added weight to his counsel when he carried what he says were appellant’s messages and assurances. The court was right in refusing these instructions.
If the instructions numbered 2, 3 and 4 were correct, then there can be no doubt of the correctness of the verdict herein. The evidence fully justified the jury in finding the state of facts which, under those instructions, would authorize a verdict.
It is not necessary for a party to be under arrest and actually in the course of being prosecuted in order to enable a party who secures the dismissal or termination of the prosecution, for a monied consideration, to plead the illegality of such consideration in bar of its collection. Mr. Beach says: “A contract, the consideration of which, in whole or in part, is the suppression of a criminal prosecution, is without any legal efficacy, either as a cause of action or as a defense to an action not founded on or arising out of the agreement.” 2 Beach on Modern Contracts, § 1551-
Contracts to suppress evidence or in any way interfere with the course of justice, whether within the terms of any statute or not, are against public, policy and void. See note on page 121, Henderson v. Palmer, 22 Am. Rep. 117; Peed v. McKee, 42 Ia. 689. A note or agreement where the consideration is the prevention or dismissal of a prosecution is void, even though the amount represents a debt due the payee. Rogers v. Blythe, 51 Ark. 519; Kirkland v. Benjamin, 67 Ark. 480.
Smith v. Steely, 80 Ia. 738, is strikingly in point. It was a case of parents mortgaging property to protect a son from prose cution for embezzlement. The court said: “We need not en-quire into the soundness of the position of Rees & Co’s.- counsel to the effect that, to support the defense set up by Steely and wife, it must be shown that the son had in fact embezzled, as charged by Rees, for the reason that there can be no compounding of a felony unless a felony has been committed. We think, to support Steely’s defense, it is not necessary to prove that the son was guilty of embezzlement. Whether he was or not the result would be the same. If he was guilty, it must be conceded that Rees & Co. under the facts were guilty of compounding a felony, and the notes and mortgages are therefore void, as being made in the commission of an offense. If he was not guilty, they were without consideration, for the reason above stated, and can not be enforced.”
The instructions in question submitted a correct statement of the law, and there was evidence tending to sustain the theory-presented in them.
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Battle, J.
K. B. Neely brought this action against W. A. Black on a promissory note executed by the defendant to the Crestón Loan & Trust Company for the sum of $400, and assigned by the payee to plaintiff; alleging that the note was unpaid. The defendant answered, and admitted that he executed the note, and alleged that the payment of the note was secured by a mortgage on lands in the county of Adair and State of Iowá, executed by himself and wife; that “at the time of its execution defendant was indebted to one J. R. Barcroft, of Iowa, in the sum of $636, evidenced by a note then past due; that immediately preceding the 28th day of March, 1900, defendant and Barcroft agreed upon a settlement in which Barcroft agreed to take said land at $30 per acre, and in payment therefor to surrender said note of $636 and assume and pay the note and coupons sued on herein; that, after computing interest, these amounts overpaid, by $38, the sum to be paid for the land, and that the defendant thereupon paid that amount to Barcroft in cash, and executed and delivered to him a deed to the land subject to the mortgage and debt due to Crestón Loan & Trust Company; that during the year 1900, apd in conformity with his said undertaking, Bar-croft paid off the note to the Crestón Loan & Trust Company, both principal and interest, and, colluding with the plaintiff to defraud the defendant and compel him to nay the note twice, he procured the Crestón Loan & Trust Company to indorse the note in blank without recourse and surrender it to him, in order that it might be used in pursuance of an agreement between plaintiff and Barcroft as a basis for this suit.' He denied that plaintiff is an innocent holder and the owner of the note, and that he paid value therefor before maturity; and averred tliat Barcroft furnished the money to pay to the Crestón Loan & Trust Company, that plaintiff never had any interest therein. Defendant further stated that he is a citizen of Little River County, Arkansas; plaintiff is a citizen of Iowa, in which State the land is situated; that Barcroft purchased the land subject to the mortgage or deed of trust, and assumed the payment thereof; that Barcroft, or his legal representatives,' are in possession of the land and the rents and profits thereof; that the land is worth greatly in excess of the note sued on, and is locally accessible to plaintiff, but, by reason of the conspiracy and understanding between Barcroft and plaintiff to defraud defendant, plaintiff refused to proceed against the land, well knowing that, if he should attempt to do so, it would be made to appear that the money paid to the Crestón Loan & Trust Company was furnished by Barcroft, and plaintiff had no valuable interest therein; that defendant is willing and ready to pay on the note any balance-remaining after the sale of the land, if it should be made to appear that plaintiff was entitled thereto; that, if this suit proceeds to judgment, and defendant has to pay the judgment, he will be without any adequate remedy to protect his rights and subject tihe land to the payment of the debt.
“Prayer that the matter be transferred to equity, that plaintiff be required to surrender and cancel the note, or if, in the opinion of the court, plaintiff has any legal and pecuniary interest in the note that he be required to prosecute and exhaust his claim against the land before proceeding in this action.”
Plaintiff replied to defendant’s answer, and denied that Barcroft assumed or agreed to pay the note sued on, or that the same was paid by him or any one else, and that there was any fraud or collusion in the purchase of the note, or that any part of the purchase money was furnished by Barcroft; and alleged' that he purchased and paid for the note with his own money, in good faith, and before the maturity thereof.
There are only two issues in the. case, and they are: Did Barcroft assume the payment of the note? Did he pay it and cause it to be transferred or 'assigned to another ?
The note is payable to the order of the Crestón Loan & Trust Company, on the first day of April, 1903, at its office in Crestón, Iowa; and was assigned by the payee to plaintiff without recourse upon it.
Plaintiff testified that he authorized J. R. Barcroft to negotiate for the purchase of the note, which he did, and purchased it; and that he furnished Barcroft with $424.60 to pay for the note, which he did, and received it in return.
Defendant testified that he sold the land mortgaged to the Crestón Doan & Trust Company to J. R. Barcroft at and for the price of $1,200, and received therefor his note held by Barcroft for $836.38, less $36.38 unpaid thereon, leaving $800; and for the remaining $400 of the $1,200 Barcroft assumed the payment of the note sued on; and that-he conveyed the land to the purchaser by deed, in which he recites that he received therefor $1,200, and covenants 'that it is free from all incumbrances, except the mortgage to Crestón Loan & Trust Company.
The correspondence between the Crestón Loan & Trust Company and Barcroft in relation to the transfer of the note was read as evidence. It was commenced by the former writing to the latter that the interest due on the note had not been paid, and that it is informed that he owns the land mortgaged to it, and, if so, to send a draft to it for the same. Barcroft replied that he did not assume payment of the note, and says: “I purchased the land on representations that I find to be entirely false. I will find you a purchaser for the note who will take it at its face and interest under an indorsement without recourse. While this may not be desirable to the holder, I think it will be the cheapest and best for him, all things considered. I will send the draft under this proposition if you will send the note indorsed without recourse in blank to the Citizens’ National Bank, Des Moines, Iowa. It will be less trouble and cheaper to have my litigation with him if the note is held by some one here. I have already arranged with one to buy the note. I-Ie will furnish the money when the note is sent as directed.” This letter was followed by others in which Barcroft sent a draft to the company for the amount of the note, and informed it that it was not sent in payment, but for the purchase of the note; that “the money was received from another;” and that the note was not to be canceled, “but assigned in blank without recourse and sent to” him. This correspondence was read as evidence to the jury over the objections of the plaintiff; but, as the objection is not urged in the brief, we consider it waived.
Over the objections of the plaintiff, the court gave the following among other instructions to the jury:
“No. 5. You are instructed that the assignment in blank without recourse of an obligation for the payment of money is, in legal effect, only a quitclaim of the debt, and the one who takes such an assignment can not claim the rights of an innocent purchaser; so, if in this case you find that the plaintiff accepted a transfer of the mortgage bond in question without .recourse, these facts were sufficient to put him upon inquiry as to the nature of the transaction, and he will be held to a knowledge of all the facts connected with this transfer.”
The jury returned a verdict in favor of the defendant, and the plaintiff appealed.
Appellant had the right to purchase the note sued on. Having purchased it, he had the right to enforce the payment of it by suing Black, the maker, recovering judgment against him for the amount thereof, and suing out an execution and causing the same to be executed, or by foreclosing the mortgage. Fitzgerald, v. Beebe, 7 Ark. 319; Benjamin v. Loughborough, 31 Ark. 210. Black can not and could not compel the Crestón Loan & Trust Company or Neely to foreclose the mortgage, so as to subject the land to the payment of the debt, and Barcroft, if he assumed the debt, to a judgment for any deficiency; but he could have proceeded in equity to compel Barcroft, if he assumed it, to pay off the mortgage according to his undertaking. Marsh v. Pike, 10 Paige, 595; Cornell v. Prescott, 2 Barb. 16; Marshall v. Davies, 78 N. Y. 414; Cubberly v. Yager, 42 N. J. Eq. 289; 1 Jones on Mortgages (6 Ed.), § 768.
If Neely purchased the note, he had the right to bring and maintain this action, unless Black or Barcroft had paid it. The only defence against the action is payment. That is.the only act that will absolve Black from the obligation to pay it to the owner thereof. The fact that Neely procured Barcroft to purchase the note for him, and Barcroft did so and paid for the same with monev Neely furnished him for that purpose, will not affect Neely’s right to collect it. So the instruction given over the objections of appellant should not have been given. It was inap plicable and calculated to mislead the jury; and it is not correct. “As said in Virginia, by Green, J.: ‘An indorsement without recourse is not out of the due course of trade. The security continues negotiable, notwithstanding such an indorsement. Nor does such an indorsement indicate, in any case, that the parties to it are conscious of any defect in the security, or that the indorsee does not take it on the credit of the other party'or parties to the note. On the contrary, he takes it solely on their credit, and the indorser only shows thereby that he is unwilling to make himself responsible for the payment.’ ” i Daniel on Negotiable Instruments (5 Ed.), § 700, and cases cited.
If Neely purchased the note, and it was transferred to him in blank, he had the right to fill the blank with his own name, and thereby make the transfer to himself complete. Edwards v. Scull, 11 Ark. 325.
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McCulloch, J.
W. R. Kirby, the appellee herein, and appellant, C. E. Lee, and his brother, E. T. Lee, were co-partners, under style of Independence Packet Company, in the ownership and operation of-a steamboat; and Kirby instituted this action at law against them to recover the sum of $368.89 alleged to have been paid out by him in satisfaction of partnership debts since the dissolution of the firm. He alleges that by contract in writing duly executed dated July 24, 1900, which is set forth in the pleadings, the co-partnership was dissolved, and he was released from all debts of the firm, and that the defendants agreed to pay-said debts. This contract was signed by Kirby and by “Lee Bros, by F. T. Lee.”
Appellant, C. E. Lee answered separately, denying that he executed this contract or authorized its execution, or that he ever ratified or affirmed it, and denying.that he ever agreed to pay the debts of the firm. On his motion the case was transferred to the chancery court, and the trial there resulted in a decree in favor of Kirby against both of the defendants for the amount sued for. C. E. Lee alone appealed.
Both of the Lees testified that C. E. Lee never authorized the signing of the dissolution contract, and the latter also testified that he never knew of the existence of the contract until this action was instituted, nearly two years afterwards. In reply, however, to the direct question propounded to him whether or not his__brother had the right to sign the name of Lee Bros, to the contract, he said that “he went ahead just like most other brothers. He signed whatever he wanted to, and I did the same.”
F. T. Lee had charge of the business, so far as the interest of both of the Lees was concerned, and frequently signed the name of Lee Bros, to notes, the validity of which C. E. Lee never disputed and expressly recognized by payment. F. T. Lee, in response to a question propounded to him concerning his expenditure of moneys belonging to him and his brother, said: “I was spending our money; we considered whatever belonged to one belonged to the other at that time.”
Kirby testified that C. E. Lee was not present when the contract was signed, but that he and F. T. Lee talked over the matter with the former at some other time.
It is admitted that after the execution of this contract Kirby had nothing more to do with the boat, and that C. E. Lee knew this. Fie knew that his brother, F. T. Lee, was assuming to execute contracts in the name of Lee Bros., and that Kirby had been released from the partnership upon some terms. He was thereupon put upon inquiry as to the terms of the dissolution, and by failing to inquire or object to the terms is deemed, under the circumstances, to- have assented to and affirmed the contract made in his name by his brother.
We think that the chancellor was right in finding that there was a ratification of the contract, and the decree is affirmed. | [
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McCulloch, J.
The appellee, Hutchens, sued appellant on account for $33.82 before a justice of the peace of Washington County. Judgment was rendered by default, and the defendant subsequently appeared and took an appeal to the circuit court. He appeared in the circuit court, and moved to dismiss the action on the ground that no account was filed before the justice of the peace, and that the justice of the peace was related to the plaintiff within the fourth degree. The court heard oral proof, and found that a written account had been filed with'the justice of the peace, and overruled the motion to dismiss.
The case was then continued until the next term of the court on -motion of the defendant’s attorney during his absence on account of sickness of his wife. On a subsequent day of the same term, in the absence of the defendant, the court, upon proof being made of fraud in procuring the order of continuance, set the same aside and rendered final judgment against him by default for the amount of the plaintiff’s demand.
The defendant later filed his petition to vacate the judgment, which was denied, and he appealed to this court.
In his petition appellant states that the order setting aside the continuance and the default judgment were rendered without notice to him or his attorney. He sets forth a statement of valid and sufficient grounds for procurement of the continuance, and also states facts constituting a defense to the plaintiff’s cause of action.
Appellant attempts, by bill of exceptions signed by the judge of the court below, to bring up all the proceedings, including what purports to be the judgment and orders of thé court. The bill of exceptions, even if available for that purpose, was not filed with the clerk below within the time allowed, and therefore can not be considered. But it is not proper to incorporate in the bill of exceptions the record entries of the court'and the pleadings. They should be certified up, not by the presiding, judge in the bill of exceptions but by the clerk in the transcript outside the bill of exceptions.
This being the state of the record before us, there' is no final judgment of the court shown from which an appeal would lie. So the appeal is' dismissed. | [
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Per Curiam.
Appellant, James Ross Weaver, Jr., by his attorney, has filed this motion for Belated Appeal to Supplement the Record and for a Rule on the Clerk to accept the record on appeal. The record was refused when tendered to the clerk because notice of appeal was not timely filed subsequent to an order of the trial court denying appellant’s motion for a new trial. ARAP Rule 4(d).
Appellant’s attorney, Bill Luppen, admits that the failure to renew a timely notice of appeal within thirty (30) days after the order denying a new trial was due to his own neglect.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Dudley, J., not participating. | [
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Dale Price, Justice.
The appellant, John Sanders, appeals from the probate court’s denial of his motion to dismiss. He contends the probate court lost jurisdiction to commit him to the Arkansas State Hospital due to the failure of the Arkansas Department of Human Services (ADHS) to file a psychiatric or psychological report within thirty days following the entry of his order of acquittal pursuant to Ark. Code Ann. § 5-2-314 (Supp. 1989). We are unable to address this argument on its merits because the record does not contain the circuit court’s order of acquittal. Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990).
The record consists of the report of ADHS dated February 27, 1990, proceedings of the commitment hearing conducted on March 8, 1990, and the probate court’s order of commitment of March 9,1990. It is well settled that an appellant must bring up a record sufficient to show the trial court was wrong. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988).
The probate court’s denial of the appellant’s motion to dismiss is therefore affirmed.
Affirmed. | [
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Steele Hays, Justice.
The Bank of Fayetteville, N.A., John M. Lewis and Patricia Lewis brought this suit to quiet title to an easement to a common stairway at the rear of adjoining buildings which house the Bank of Fayetteville and Matilda’s, Inc., naming A.D. and Virginia McAllister as defendants. The stairway is in the McAllister building and provides access to the second floor of the bank building. The bank building is owned by plaintiffs, John M. Lewis and Patricia Lewis, and leased to the Bank of Fayetteville.
The petition alleged that the stairway entrance had been recently blocked, denying the plaintiffs the full enjoyment of their easement. The McAllister defendants filed a counterclaim alleging abandonment and adverse possession for more than fifteen years, asking that title to the disputed property be quieted in A.D. McAllister, Jr., Trustee.
Issues were joined and following a trial the chancellor found that the plaintiffs and their predecessors in title had as early as 1909 acquired the perpetual and unrestricted use of the stairway leading from the street to the second story and the right to rebuild or repair the stairway and hall in the event of destruction, injury or decay. The chancellor also found that the stairway had not been used by the plaintiffs or their predecessors in title for at least twenty-nine years and that the entryway at the head of the stairway has been sealed and bricked for at least twenty-nine years preceding this litigation; that even though various conveyances among members of the Lewis family over the years included a description of the easement, evidencing its existence, the subject of reopening the entry way to provide access was never raised until sometime in 1986; that the lack of use, combined with the passageway being sealed and bricked for more than twenty-nine years, constithtes an abandonment.
On appeal from the decree, the Bank of Fayetteville, John M. Lewis and Patricia Lewis maintain that the finding of the chancellor that the easement rights were abandoned was against the preponderance of the evidence. Finding no merit in the argument, we affirm the decree.
While we consider chancery appeals de novo, we will not reverse unless the chancellor’s findings are clearly erroneous. Wilson v. Wilson, 301 Ark. 80, 781 S.W.2d 487 (1989). The chancellor held that the combined lack of use and the sealing and bricking of the entryway over twenty-nine years ago constituted an abandonment of the easement because those were acts inconsistent with future enjoyment of it. We recognize the rule that an easement may be lost by abandonment. Drainage District No. 16 v. Holly and Roach, 213 Ark. 889, 214 S.W.2d 224 (1948). Abandonment in this context means “to relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in,. . .” Hendrix v. Hendrix, 256 Ark. 289, 506 S.W.2d 848 (1974). The one asserting abandonment has the burden of proving it by clear evidence. Id. An easement may not be lost by merely showing nonuse, however, “abandonment of an easement will be presumed where the owner of the right does or permits to be done any act inconsistent with its future enjoyment.” Drainage District No. 16 at 898, 214 S.W.2d at 229.
The evidence consistent with abandonment in this case included: (1) The doorway leading into the bank building had been bricked and sealed for at least twenty-nine years. (2) Members of the Lewis family have held title to the bank building since 1909, but there has been no demand or request to reopen the passage for at least twenty-nine years until appellant John Lewis began renovation of the bank building in 1989. (3) The Lewis family members have not used the stairway, even to have a utility meter read, for more than fifteen years.
In Drainage District No. 16 v. Holly and Roach, supra, the Arkansas Supreme Court held that the Drainage District abandoned its right-of-way for a levee because it destroyed the original levee and erected another on a new location. Also, the District did not exercise any control over the original right-of-way for at least seven years. Justice McFadden wrote for the entire court:
[wjhether or not an abandonment exists in any given case depends upon the particular circumstances of such case. A right-of-way is but an easement, which will be held to be abandoned with the intention to abandon and the acts by which such intention is carried into effect clearly indicate such abandonment. While nonuser does not alone constitute an abandonment, yet it is some evidence thereof, and when, in addition to such nonuser, facts are proved and circumstances shown in testimony evincing that intention, then the abandonment is established.
Id. at 897-98, 214 S.W.2d at 229 [quoting Gurdon & Ft. Smith Rd. Co. v. Vaught, 97 Ark. 234, 133 S.W.2d 1019 (1911)]. An Oklahoma court, under comparable facts, held that an easement providing access to an opera house by its third floor was abandoned. One of the factors relied on was that the owner of the opera house permanently eliminated access by bricking off the third floor access. Stillwater Columbia Assoc., Inc. v. Shepherd, 727 P.2d 596 (Okla. Ct. of App. 1986).
Though an easement of way is not lost by nonuser, evidence of nonuser may be admitted as interpretative of acts which in themselves might constitute an extinguishment of the easement. Moreover, obstructions rendering the user of an easement impossible and sufficient in themselves to explain the nonuser, combined with a great length of time during which no objection was made to their continuance and no effort was made to remove them, raises a presumption that the right was abandoned.
G. Thompson, Thompson on Real Property § 443 at 742 (1980).
In this case, the length of time of nonuse of the easement indicates an intent to abandon it. While nonuse alone may not be enough, it was accompanied by proof of the absence for an extended period of time of any objection to, or attempts to reopen, the brick obstruction of the passageway. That proof was incompatible with a desire to use the easement and leads us to conclude that the chancellor’s finding of abandonment was not clearly erroneous.
Affirmed.
Newbern and Brown, JJ., not participating.
Additional party defendants owning beneficial interests under the A.D. McAllister, Jr., Trust were subsequently added. | [
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Donald L. Corbin, Justice.
This appeal comes from an order of the Probate Court of Crittenden County, denying probate of two documents, granting dower, and distributing the estate. Appellant, William L. O’Donnell, brother of decedent Harold O’Donnell and executor of the estate, filed a petition for probate of two documents, the first document being a holographic instrument dated May 23,1988, and the second document being a typewritten instrument dated October 9, 1979. Appellee, Patricia O’Donnell, widow of the decedent, contested the admission of both documents to probate.
Appellants, William O’Donnell, Victor O’Donnell, decedent’s brothers, and Lillian O’Donnell, decedent’s mother, assert four arguments for reversal of the probate court’s order. We find no merit in the first two arguments; however, the third argument has merit and we reverse the order as it relates to that point. Our reversal of the order on the third point necessarily requires reversal of the order on the fourth point.
I.
TESTIMONY OF SETTLEMENT NEGOTIATIONS
As their first argument, appellants contend that all of the testimony involving references to a “shopping list” or “family settlement” should have been excluded under Ark. R. Evid. 408 as evidence of an attempt to negotiate a family settlement agreement.
Tom Montgomery, attorney for decedent, testified on behalf of appellants. His testimony was the primary evidence'offered in support of the holographic instrument. On cross-examination he denied referring to this instrument as the decedent’s “list” or “shopping list” from which he was to prepare the decedent’s will. David Shelton, appellee’s former attorney, testified on her behalf that Montgomery did in fact refer to the holographic instrument as a “list” or “shopping list.” Shelton further testified that because he “didn’t have a vague idea” as to the value of the estate at the time the references to a “shopping list” were made, he was in no position to make any settlement offer on behalf of appellee.
The probate court allowed Shelton’s testimony, as well as that of appellee and one other witness, to be admitted for the purpose of impeaching Montgomery’s testimony. Rule 408 of the Arkansas Rules of Evidence clearly permits appellee to directly attack the credibility of Tom Montgomery. The last sentence of Rule 408 provides: .
This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, ....
See Missouri Pac. R.R. Co. v. Arkansas Sheriff's Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983).
We note further Shelton’s testimony that he was ignorant of the estate’s value and therefore in no position to make any settlement offer. The probate judge could have properly considered this testimony as credible evidence that no settlement negotiations were in fact conducted. Under these circumstances, Ark. R. Evid. 408 would not prevent admission of the challenged testimony.
The trial judge has discretion in deciding evidentiary issues and his decision will not be reversed on appeal unless he has abused his discretion. Northwestern Nat'l Life Ins. Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990). We find no abuse of discretion and affirm the trial court’s admission of this evidence.
II.
HOLOGRAPHIC INSTRUMENT
Appellants allege the court erred in denying the holographic instrument of May 23, 1988, to probate. For the benefit of the reader, a copy of the holographic instrument is reprinted and attached as an appendix to this opinion. The probate court denied its admission to probate for failure to prove testamentary intent. The court arrived at this decision after carefully comparing factors indicating the holographic instrument was a will with factors indicating it was not a will. The probate court’s memorandum opinion listed the factors as follows:
Factors Favoring Holographic Instrument as Will
1) Montgomery told decedent what to do, and he hands it to Montgomery saying, “Here it is.”
2) Decedent’s habit as acting in cursory and abbreviated way.
3) Instrument dated and signed.
4) Instrument has “Last Will and Testament”.
5) Decedent never told wife he had a 1979 will.
6) Decedent never told wife he revoked 1979 will.
7) Decedent never told wife home just in his name. Factors Indicating Holographic Instrument Not a Will
1) So brief, perfunctory, truncated and cursory as to be meaningless.
2) Written part in pen, part in pencil — seems to be on scratch paper.
3) Strikeovers.
4) No real urgency or hurry in-getting a will — not sick.
5) All property not disposed, of.
6) Shelton said Montgomery called it a list, until some 10 days later.
7) Decedent knew Montgomery going to make a written will.
8) Decedent showed typewritten will to his ;wife, but did. not tell her he had a handwritten will.
9) Discussed with wife in detail the provisions of typewritten will.
10) Has no words of a dispositive nature.
11) Wife’s name not mentioned.
The probate court’s memorandum opinion went on to say:
As the Court appreciates the law in this area, the Court must be satisfied that the writer clearly expressed an intent to make the proffered document his will, and no inference is permitted, and the Court’s mind must be settled as to the writer’s testamentary intent. McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973). The document itself, along with all the attending circumstances, must overcome all doubt about testamentary intent. David Terrell Faith Prophet Ministries v. Estate of Varnum, 284 Ark. 108, 681 S.W.2d 310 (1984).
The proof shows that decedent called Montgomery to prepare a will, and Montgomery instructed decedent how to prepare a holographic will, “to tide him over.” When decedent comes to Montgomery’s office later, he handed Montgomery the holographic instrument, and said, “Here it is.” Montgomery talked with decedent about the contents to be in his will, and then prepared a typewritten will, which was never properly executed. The decedent died unexpectedly a few days later.
It is clear Montgomery was in the process of preparing an attested typewritten will, and although Montgomery instructed him how to make a holographic will, the words, “Here it is,” might have meant here is the way I want my will drawn up. He might have decided to simply let Montgomery go on with the typewritten will, since there was no apparent urgency.
It is certain that Montgomery thought that decedent intended the document to be his will; but it is the decedent’s intent that is the subject of the inquiry, not his lawyer’s, and from all the surrounding circumstances, together with the reading of the four corners of the instrument, the Court cannot, with confidence, say the decedent intended this document as a will.
The court feels this case is somewhat similar to Pullen v. Estate of Pullen, 249 Ark. 489, 460 S.W.2d 753 (1970). There, as here, the proof indicated that the holographic document might as well been a memorandum to the lawyer, as an intended will.
We review probate matters de novo on appeal but will not reverse the findings of the probate judge unless clearly erroneous. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990). We agree with the reasoning of the probate judge who had the facts before him. His reasoning is within the framework of the applicable law which is cited in the memorandum opinion. We cannot say the probate judge was clearly erroneous in denying the holographic instrument’s admission to probate for lack of testamentary intent.
III.
REVOCATION OF 1979 WILL
Appellants allege the probate court erred in holding the typewritten will dated October 9,1979, to be revoked. They argue that the revocation statute was not strictly complied with as the will was not destroyed in the testator’s presence. The evidence at trial revealed that Montgomery tore the 1979 will into two pieces pursuant to the decedent’s directions which came over the telephone. Montgomery testified that he could not say for certain that the decedent was or was not present when he destroyed the will. However, Montgomery stated that, according to the notes he made to himself, the will was most likely destroyed outside the testator’s presence.
Ark. Code Ann. § 28-25-109 (1987) provides in part that:
(a) A will or any part thereof is revoked:
(2) By being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
A decision under a prior statute which is substantially similar to the current statute, Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163 (1946), held that oral instructions of the testator that his will be destroyed were insufficient, even though the testator believed his instructions had been carried out. The decision required strict compliance by stating “the testator did not personally destroy the will, and never caused the will to be brought into his presence for destruction. So, the will was not revoked in the form and manner required by law.” Reiter, 210 Ark. at 844, 198 S.W.2d at 165.
We followed the strict compliance standard of the Reiter opinion in Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99 (1950), a case decided under yet another version of the same statute although, substantially similar to the current statute in all respects relevant to this case. The Mosely court stated:
In construing this statute we have uniformly held that the only methods of revoking a will are those enumerated in the statute. For instance, a testator’s direction that his son destroy a will was held ineffective where the testator did not specify, as the statute requires, that the destruction be in his presence. Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163.
Mosely, 217 Ark. at 537, 231 S.W.2d at 100. Mosely relied on Reiter and refused to recognize the doctrine of implied revocation as it relates to the particular facts of the Mosely case.
Appellee urges us to adopt a theory of substantial compliance with respect to the revocation statute. In support of this argument appellee cites us to cases in which we have allowed substantial compliance with other probate statutes. See, e.g., Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985); Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963). The probate judge applied a theory of “ratification” to this case by stating that the testator “ratified” the revocation of the 1979 will when he observed that the will had indeed been destroyed. Although he wrote a well-reasoned memorandum opinion on this issue, the probate judge, like appellee, did not cite any binding authority in support of either ratification or substantial compliance with respect to the revocation statute.
The strict compliance standard was enunciated in Reiter, supra, and followed in Mosely, supra. We are bound by those decisions. Accordingly, we hold that the testator’s 1979 will was not revoked pursuant to the terms of the revocation statute, section 28-25-109, as the will was not destroyed in the testator’s presence. We reverse and remand the case to the probate court with instructions that the October 9, 1979 will be admitted to probate.
IV.
DISTRIBUTION OF THE ESTATE
Appellants contend the probate court erred in its order of distribution. Appellants specifically challenge the award of debt-free dower. Because we reverse this case for admission of the 1979 will to probate, we must necessarily reverse the court’s order of distribution as well.
Affirmed in part; reversed and remanded in part. | [
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Donald L. Corbin, Justice.
Appellant, Ken Duane Kittler, appeals a judgment convicting him of burglary and theft of property and sentencing him as an habitual offender to two consecutive forty-year sentences. Appellant makes two claims on this appeal. First, appellant contends that his counsel should have been allowed to examine the arresting officers’ personnel files and that evidence admitted during their testimonies should have been suppressed. Second, appellant contends that he should not have been sentenced pursuant to the habitual .criminal statute.. We disagree with appellant’s contentions and affirm the judgment of conviction.
Appellant’s first claim is that he should have been allowed to examine the personnel files of the officers who arrested him in order to determine their compliance with the regulations promulgated by the Commission on Law Enforcement Standards and Training as required by the Law Enforcement Officer Training and Standards Act. Appellant argues, as stated in his brief, that “the officers [sic] actions were tainted because of non-compliance with the aforementioned statute [Ark. Code Ann. § 12-9-108(a) (1987)] and therefore any evidence introduced by said officer was ‘fruits of the poison tree’ [sic].”
Appellant makes this claim, yet he does not identify the particular arresting officer or officers about whom he complains. Our review of the transcript reveals that several law enforcement officials participated in appellant’s arrest and that at least one of them, Faulkner County Deputy Sheriff Jerry Bradley, was properly qualified to make a valid arrest.
Ark. Code Ann. § 12-9-106(e)(l) (1987) provides that any law enforcement officer already serving under full-time permanent employment on December 31, 1977, is not required to meet the statutory training requirements or other qualifications re quired by the Arkansas Commission on Law Enforcement Standards and Training. At a pretrial hearing Deputy Bradley testified that he was indeed a certified law enforcement officer and that he was so employed prior to December 31, 1977. After considering the foregoing statutory exception and the deputy’s testimony, the trial court held Deputy Bradley to be a qualified law enforcement officer. We find no error in the trial court’s holding.
Because we conclude that Deputy Bradley was an authorized law enforcement officer who was present in his official capacity and participated in appellant’s arrest, we need not consider the qualifications of any other officers who were also present. In Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), we held that actions taken by an unqualified officer did not invalidate actions taken by a qualified officer.
With respect to the suppression issue in appellant’s claim, we note that Moore went on to hold that the exclusionary rule should not be applied in a situation involving both qualified and unqualified officers. In declining to apply the exclusionary rule, we reasoned in Moore that:
The exclusionary rule is designed to deter unlawful police conduct. It compels respect for the Fourth Amendment by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217 (1960). Here, we are not dealing with unlawful police conduct which constitutes a violation of the Fourth Amendment and, accordingly, we are not compelled by federal law to apply the rule. Still, we may apply it as a matter of state law if we deem it proper. See State v. Shepherd, 303 Ark. 447, 798 S.W.2d 45 (1990). In this case, we do not think it is fitting to apply the exclusionary rule on state grounds. The goal of the statute at issue is to compel police department administrators to check the backgrounds of those seeking to become officers, and to hire only psychologically qualified persons to serve as policemen. It is a statute which deals with standards for employment. It is not a statute which deals with police conduct. The goal of this statute and the goal of the exclusionary rule are different. Therefore, we decline to apply the exclusionary rule on state grounds. See Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).
Moore, 303 Ark. at 517, 798 S.W.2d at 89-90.
The reasoning and result reached in Moore are applicable to this case. Accordingly, we decline to hold that any evidence obtained as a result of appellant’s arrest should be suppressed.
We think the result we reach here in declining to suppress evidence is particularly appropriate in that appellant has failed to produce a record on appeal indicating that any evidence obtained from his arrest was ever admitted at his trial. We note that it is appellant’s burden to produce a record sufficient to show that reversible error has occurred. Evans v. State, 271 Ark. 775, 610 S.W.2d 577 (1981).
Appellant calls our attention to the trial court’s ruling which denied his request to examine the arresting officers’ personnel files but then held the officers to be properly qualified. In Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), this court stated such a ruling was erroneous. However, there was no prejudice to appellant in Moore as the officer’s lack of qualification was elicited through cross-examination. We note that here, as in Moore, there was no prejudice to appellant. In both cases, the officer’s compliance or non-compliance with the standards was established through testimony. There must be a showing of prejudice in order to find grounds for reversal of a conviction. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
Appellant’s second claim on appeal is that he should not have received an extended term of imprisonment because he was never charged pursuant to the habitual offender statute, Ark. Code Ann. § 5-4-501 (1987). While it is true that appellant’s right to due process of law requires that he receive notice prior to trial of the filing of an habitual offender charge, Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977), it is also true that a denial of any right, even a constitutional one, must be objected to at trial to be preserved for appeal. Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988). We note that appellant was indeed on notice that the state intended to proceed against him as an habitual offender. In fact, appellant argued to the trial court that the act itself was unconstitutional for other reasons which the trú 1 court rejected. An objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review. Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981). Appellant never made a denial of due process objection at trial and he cannot now seek review of such a denial for the first time on appeal. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990).
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant, Kathryn Medlock, appeals from the order entered June 22, 1990, awarding summary judgment to appellee, Fort Smith Service Finance Corporation. Appellee, the assignee of a hospital account from Sparks Regional Medical Center, on November 3,1989, filed suit against appellant and her husband, John Ervin Medlock, Jr., to recover for medical “goods and/or services” provided to Mr. Medlock by Sparks. Although appellant filed a timely answer to the complaint, Mr. Medlock did not answer and on January 30, 1990, the court entered a default judgment against him. On March 22, 1990, a writ of execution was issued; the Sheriffs Return, which was dated the same day, stated, “sent back - defendant J.E. Medlock has nothing of value in his name to levy on.” Appellee, on March 19, 1990, filed a motion for summary judgment against appellant. At a hearing on the motion appellee argued that the common law doctrine of necessaries should be applied to hold appellant liable for the account as the wife of John Ervin Medlock. The doctrine of necessaries provides that the husband is liable to a creditor for necessaries furnished to his wife.
See Arkansas State Hospital v. Kestle, 236 Ark. 5, 364 S.W.2d 804 (1963); Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). We note that under Arkansas common law the wife has not been held to be similarly liable. In fact, prior to the enactment of 1915 Ark. Acts 159, a married woman was not even liable on her own contracts. See Warner v. Hess, 66 Ark. 113, 49 S.W. 489 (1899). Regardless, the court granted appellee’s motion.
Appellant argues that the trial court’s decision was clearly against the preponderance of the evidence and its granting summary judgment was error as a matter of law. She contends there is no basis in law for finding her liable for the debt.
Appellee, on the other hand, insists the equal protection clause of the United States Constitution requires that we extend the liability of providing necessaries to the wife. The United State Supreme Court has indicated it will strike down all gender based laws which do not serve a legitimate governmental purpose and are reasonably designed to accomplish that purpose. See Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981). However, for a litigant to have standing to challenge the constitutionality of a law, it must be unconstitutional as applied to him. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). The general rule is that one must have suffered injury or belong to a class which is prejudiced in order to have standing to challenge the validity of a law. Stokes, supra. Constitutional rights are personal rights and may not be raised by a third party, although there is a narrow exception for cases in which the issue would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the interest of the party whose constitutional rights were allegedly deprived would be adequately represented. Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988). The exception does not apply here; appellee, therefore, does not have standing to raise the equal protection issue.
When raised by an appropriate party, other jurisdictions have considered and decided issues pertaining to the common law doctrine of necessaries and its relation to statutory provisions governing marital rights and obligations. See Cleveland Metro. Gen. Hosp. v. Oleksik, 38 Ohio App. 3d 21, 525 N.E.2d 831 (1987); Schilling v. Bedford City Mem. Hosp., 225 Va. 539, 303 S.E.2d 905 (1983). On the facts before us, however, we see no need to address either the question of whether the common law doctrine of necessaries is actually in force in Arkansas any longer or, if it is, whether the equal protection clause requires that it be extended to make the wife liable for necessaries provided to her husband. Assuming, without deciding, the viability of the doctrine, the question presented on appeal is limited to whether the trial court was correct in extending to a wife the long-standing common law duty to provide necessaries. As this is an issue most appropriately resolved by the legislature, rather than the judiciary, we cannot say that it was. Thus, for appellee to prevail, there must be some other legal basis for finding appellant liable.
Appellant asserts that although appellee offered an itemized list of services rendered to her husband, there was nothing offered to evidence an agreement or contract between her and either appellee or appellee’s assignor for such services. She relies on Ark. Code Ann. §§ 9-11-501, 508 (1987) in arguing that only where such a contract exists would she be liable for the cost of the services.
The Arkansas General Assembly in Act 873 of 1981 amended several sections of our family law statutes. The intent of the legislature as expressed in the Act was “to Remove Specific References of Gender and to Allow One Spouse to Protect His or Her Personal Property from the Creditors of the Other Spouse by Listing it with the County Recorder; and for Other Purposes.” The Act, as codified in part at section 9-11-508, states:
No bargain or contract made by any married person, in respect to his or her sole and separate property... and no bargain or contract entered into by any married person, in or about the carrying on of any trade or business, under any statute of the state, shall be binding upon his or her spouse, or render his or her person or property in any way liable therefor.
Ark. Code Ann. § 9-11-503 (1987) states:
(a) A married person may bargain, sell, assign, and transfer his or her separate personal property, carry on any trade or business, and perform any labor or services on his or her sole and separate account.
(c) He or she may sue alone or be sued in the courts of this state on account of the property, business, or services.
Clearly, the law in Arkansas provides that a married person can contract in his or her own right; he or she can sue or be sued in his or her own right. In addition, the statutes are designed to enable married women to contract and enjoy all rights and responsibilities as if they were feme sole. See Ark. Code Ann. § 9-11-502 (1987).
A review of the record reveals that appellee offered no evidence of a contract or agreement between it, or its assignor, and appellant. We find no legal basis for holding appellant liable for the “goods and/or services” provided to her husband absent a contractual agreement. As there is no evidence that appellant agreed in any way to be responsible for the debt in question, we reverse and dismiss. | [
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Conley Byrd, Justice.
This litigation is between two long-time friends and neighbors, appellant Frank Uebe and appellees Troy F. Bowman et ux. At issue are the questions whether Uebe’s holding over under a lease constituted an election to exercise an option to extend the lease, and whether the contractual requirement of advance payment of rental was waived by appellees.
The lease contract was entered into on February 14, 1947, for the use of water from a spring to operate a canning factory. The clause in issue provides:
“That for said consideration the right herein conveyed shall continue unto the party of the second part, his heirs and assigns for a fixed period of 16 years from this date, with the option to the party of the second part, his heirs and assigns, to continue said right in fall force and effect by the payment of the snm of $25.00 annually, payable in advance.”
The facts show that Uebe and Bowman, in a neighborly fashion, have from time to time exchanged labor and assistance to each other. The Bowmans at times have borrowed money from Uebe, purchased feed from him, and used his hay baler. In addition, Bowman sometimes worked for Uebe at the canning factory, at which times Uebe paid Bowman by cash or check. All other dealings between the parties were settled annually. Both parties testified to a settlement of their dealings after February 4, 1963, the expiration date of the 16-year lease, without mentioning or giving credit for the $25 annual payment provided in the lease agreement. In fact, Uebe testified that he was not aware that the lease was up that year or that the payment was due. There is testimony by Bowman that a settlement was had again in 1964. There is also testimony by Uebe that Bowman owed for hay baling, a hay baler and other items for which Uebe considered himself entitled to a set-off against any of the $25 payments due under the contract. Bowman disputes some of the items and admits other items. He acknowledges that he owes $25 for the old hay baler vdiich he bought in December 1964, and that he owes for the use of a truck in hauling some hay.
After February 4, 1963, the expiration date in the lease, Uebe continued to use the water from the spring as before, and Bowman made no complaint or comment about it until Uebe transferred the canning factory to a cooperative which he had organized in 1966. Sometime during the busy canning season of 1966, Bowman went by the canning factory to talk to Uebe about the spring, but Uebe suggested they discuss it at another time because he was too busy. Subsequently, on August 9, 1966, Bowman caused to be served upon Uebe a “No tice in Unlawful Detainer,” notifying Uebe to quit and deliver np the spring property occupied by bis pumping equipment. Uebe then filed this suit in chancery court making the contentions herein.
In contending that his holding over amounted to an election to exercise his option to extend the lease, Uebe relies on Riverside Land Co. v. Big Rock Stone & Material Co., 183 Ark. 1061, 40 S. W. 2d 423 (1931). We think the Big Roch case is distinguishable from the facts here because in the Big Roch case the lessor continued to accept payments under the lease and, after the issue concerning increased rental arose, negotiated an increased rental which it continued to accept from sometime in 1923 until 1930, when Big Rock gave the required notice under the option to extend the lease.
In Heyden v. Barnsdall Refining Co., 192 Ark. 789, 94 S. W. 2d 709 (1936), the lessor contended that Barnsdall, who held under a five-year lease, exercised its option of renewal by holding over a few months after the expiration of the five-year period. We there held that the holding over did not constitute an exercise of the option of renewal, and in distinguishing the Big Roch case, supra, pointed out that had the renewal clause “been a covenant to extend the lease without the performance of a condition precedent, a holding over may have extended same as a matter of law.”
When the option to extend here involved is read in its entirety, we hold that the trial court properly construed the provision for a payment “of the sum of $25 annually, payable in advance” as a condition precedent to the exercise of the extension. Since Uebe admittedly did not perform the condition precedent prior to the expiration of the 16-year period on February 4, 1963, we hold that his mere holding over did not constitute an extension of the lease under the option.
Nor can we find a waiver of the condition precedent to the extension of the lease. While the annual bal ancing of accounts between tbe parties for 1963 and 1964 depended to some extent on the recollection of each party with reference to time spent, material delivered, work done and payments made, neither party contends that the $25 payment was discussed or credit given or accepted for the same. Nor was the $25 payment subsequently accepted, as was the- situation in the Big Rock case, supra.
Appellant makes the further contention that there was no repudiation or abandonment of the lease and that the nonpayment of rent is not a cause of forfeiture. We hold this contention to be without merit. The issue is not whether there is a repudiation or a forfeiture of the lease but whether in fact appellant had exercised his option to extend the written lease. We think there is a clear distinction between forfeiture of an existing lease for failure to pay the rental and failure to exercise an option of extension by failing to perform the condition precedent of paying the rental in advance.
Affirmed.
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Conley Byrd, Justice.
This litigation was commenced by appellees Wilmer Welch et ux against appellant Mrs. Earl Dooley to determine the west boundary line of the Welch property and the east boundary line of the Dooley property. After Mrs. Dooley’s answer was filed, appellees Jewell Darden et ux filed an intervention to reform a deed, claiming a one-acre tract lying within the lands claimed by Mrs. Dooley in her answer. Appellant Marvin Darden, Jewell Darden’s grantor, was made a party defendant to the intervention. W. T. Dar-den, father of Mrs. Dooley, Marvin Darden and Jewell Darden, was also an uncle of appellee Wilmer Welch and is the common source of title of all lands involved.
The trial court awarded appellees Wilmer Welch et ux the lands described in their deed, (which they had received by mesne conveyances from W. T. Darden), subject to a 15-foot easement for the purpose of ingress to Mrs. Dooley’s home, and directed that Mrs. Dooley’s house, which encroached on the lands, be removed. In the controversy between Jewell Darden and Mrs. Dooley and Marvin Darden, the court reformed the deed to describe the lands in Section 26 instead of Section 35 as set out in the deed. Mrs. Dooley and Marvin Darden have appealed.
In the boundary dispute between the Welches and Mrs. Dooley, the testimony shows that W. T. Darden conveyed to one Bert Wilson, by metes and bounds description, the land now owned by Wilmer Welch; and that, by the same metes and bounds description, Bert Wilson conveyed to the Welches in 1959. After Bert Wilson took possession of the property he constructed a fence approximately 35 feet east of his west boundary. The fence still existed at the time of the trial. Mrs. Dooley acquired her property in 1962 through Marvin Darden, (who had acquired it under his father’s will), by deed which described the lands as the fractional SE¼, SE¼ Sec. 26, T 17, R 17, containing 8 2/3 acres. Mrs. Dooley caused F. M. Methvin, the County Surveyor, to survey her lands in 1963, using the fence line as the boundary. Thereafter she tore down the old Darden home and rebuilt her present home, which encroaches some five feet on the metes and bounds description contained in the Wilmer Welch deed.
With the record showing the conveyance of the Welch lands by the metes and bounds description, the burden was cast upon Mrs. Dooley to show her alleged adverse possession. Obviously, she has not had possession long enough for the seven-year statute to run, and the record is void of testimony that anyone held adversely to the Welches prior to the time Mrs. Dooley received her deed. The use of the premises for a roadway by Mrs. Dooley and her predecessors would give them only a right of prescription for roadway purposes, and this was recognized in the trial court’s decree. Therefore we affirm the chancellor’s decree as to the boundary dispute.
Regarding the reformation of the deed, appellants contend that the court erred in awarding to intervenors the one acre of land out of the tract purchased by Mrs. Dooley without notice of intervenors’ claim, and that the trial court should have awarded the intervenors judgment against appellant Marvin Darden.
There is ample testimony, corroborated by persons not party to the litigation between intervenors and appellants, to show that the intervenors paid Marvin Dar-den $100 for the acre of ground; that the acre was stepped off in Section 26; that the intervenors cleaned up the bushes; and that Marvin Darden owned no land in Section 35 which would fit the description contained in the deed but that he did own lands in ‘Section 26 where the one acre was stepped off. With respect to appellants’ contention, they are met with the facts that lack of notice or knowledge on Mrs. Dooley’s part was not pleaded; that nothing in the record showed that Mrs. Dooley had actually taken possession of any part of the lands other than that where her house was located; that the description in her deed was void for indefiniteness; and further, that it was shown by Marvin Darden’s testimony that he was still exercising some control and possession over the premises within the last two or three years — he having done some fencing.
It is true that Marvin Darden testified definitely that he intended to convey one acre in a square in the northeast corner of Section 35, but in reading all of his testimony it is observed that he could not remember how old he was, whether his father had conveyed the land in Section 35 prior to his death, and that he did not know whether he owned Section 35 at the time the deed was made. In view of the fact situation in which Marvin Darden testified, the chancellor could properly have disregarded his testimony as being untrustworthy. Consequently, we hold that there was sufficient evidence to support the reformation of the deed. Burchfield v. Banks, 202 Ark. 209, 149 S. W. 2d 551 (1941).
Appellants are concerned because Mrs. Dooley bas been ordered to remove the encroachment of her house from the Welches’ property. We need not decide here how the trial court should enforce its order, but we do point out that the Welches in their brief indicate that, since the encroachment is within the 15-foot easement awarded Mrs. Dooley, it will not be necessary to relocate the house.
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Paul Ward, Justice.
Larry Wright, appellant was charged with the crime of committing rape on the night of January 24, 1967. He was tried and convicted on May 9, 1967, and sentenced to life imprisonment.
The victim identified appellant as the person who entered her bedroom about midnight and forced her to have intercourse with him. Appellant’s defense consisted mainly of an alibi. He took the witness stand, and testified, in substance: He was at the home of his parents from about 10 p.m. on the night in question and remained there constantly until 7 or 8 o’clock the next morning. He was corroborated by his parents, and, to some degree, by other witnesses.
On appeal, and for a reversal, appellant does not contend there was any lack of sufficient evidence to support the jury verdict of guilty. He does, however, contend the case should be reversed because of two alleged errors committed by the trial court, which alleged errors we presently examine.
One. The first contention by appellant is:
“The trial court erred in failing to grant a mistrial after allowing the prosecution to improperly cross-examine the defendant by accusing defendant of specific acts of bad conduct and criminal conduct and attempting to impeach defendant’s credibility.”
Another point raised by appellant is closely related to the above and will not be discussed separately. It merely concludes that “the verdict of the jury was rendered ont of bias and prejudice against the defendant as a result of the improper cross-examination ...” mentioned, above.
On cross-examination appellant was asked nine-questions by the prosecuting attorney relative to his alleged past conduct or behavior. The first question was:
Q. “I will ask you if Mr. Eoger Tucker on several occasions has requested that you quit hanging around his place of business because you make indecent proposals to women.”
Appellant objected on the ground that “it has nothing to do with the proof of innocence in this case at all.” Then the trial court stated:
“. . . you know this defendant has taken the stand. He is subject to the same rule and cross-examination as any other witness. These questions may be asked on the credibility of the witness.”
To the above appellant again objected, and saved exceptions.
Six or seven other questions of the same or similar import were propounded to appellant, all of which were denied by him. To one other question of this nature appellant answered that “I used to hang around the Palace Laundry and they told me, the lady did, to stay away and I ain’t been back there since”.
There were several discussions between the court and the attorneys relative to the propriety of the question during which time appellant made proper objections. Then the court made this statement to the jury
“Gentlemen, you understand these questions and. answers with respect to this line of questioning which has just been pursued, to which the defense has objected, is not to be considered by you as substantive proof of the offense for which he is being tried. It goes only to his credibility.”
A review of our decisions pertinent to matter here in question leads us to conclude the trial court’s ruling ivas correct.
In support of his contention of error appellant cites cases of Ware v. State, 91 Ark. 555, 121 S. W. 927; Younger v. State, 100 Ark. 321, 140 S. W. 139, and; Henson v. State, 239 Ark. 727, 393 S. W. 2d 856. We think, however, these cases are not applicable to the situation here. In the Ware case the State offered testimony by witness as to other crimes committed by appellant after he had tried to prove his good character. In rejecting the State’s testimony this Court also said:
“As a witness in the cause, he could have been cross-examined ; and upon his cross-examination, like any other witness, he could have been asked as to specific acts for the purpose of discrediting his testimony as a witness.”
In the Younger case (which was a rape case) the State again offered to prove appellant’s bad character by its own witnesses, even though he had not attempted to prove his good character. In holding this was improper, we said:
“Appellant, however, having taken the witness stand in his own behalf, was subject to all the rules of examination and impeachment as any other witness. Therefore to test his credibility the State had the right on cross-examination to ask the witness if he had not been convicted of petit larceny, and if he had not been confined in the penitentiary.”
The issue in the Henson case was very similar to that in the Ware case, and we held that after appellant had offered to prove his good character the State could not introduce witnesses to prove “specific instances of bad behavior as a matter of contradicting appellant’s testimony”.
There are numerous decisions by this Court holding, in effect, that when a defendant takes the witness stand (as he did here) he is subject to the same rules of evidence and impeachment as other witnesses on cross-examination to test his credibility. Jordan v. State, 141 Ark. 504, 217 S. W. 788; Kyles v. State, 143 Ark. 419, 220 S. W. 458; Hays v. State, 219 Ark. 301, 241 S. W. 2d 266, and; Edens v. State, 235 Ark. 178, 359 S. W. 2d 432.
Two. It is here contended that the trial court committed reversible error in refusing to discharge the jury and empanel a new jury. The issue arose in the manner described below.
While the jurors were being questioned for qualification the trial court asked them if anyone knew anything about the facts of the case or if they had heard anything about it. Thereupon John Candler (a member of the panel) stated: “This incident occurred in rent property owned by myself and my wife.” Appellant moved for a mistrial, and it was denied by the court. An objectioii was made by appellant, and exceptions saved.
A review of the record convinces us the court committed no reversible error. In response to further questioning by the court Candler made it clear that he had talked with no one who purported to know the facts; that, if accepted, he would not be influenced either way as to guilt or innocence of the defendant; that he didn’t know appellant or the prosecuting witness, and had never seen either before the morning of the trial; that he only heard that an “alleged incident did happen”
Appellant also made a motion to strike Candler for cause, and this motion was granted.
We think the trial court, under the state of the record here, did not abuse hi$ discretion in refusing to declare a mistrial. In the case of Briley v. White, 209 Ark. 941, 193 S. W. 2d 326, this Court refused to grant a mistrial. In sustaining the trial court we used this language:
“Much latitude must be given to the trial court in handling matters of this kind, and, in the absence of a showing of abuse of discretion or a manifest prejudice to the rights of the complaining party, this court will not reverse a judgment on account of the action of the trial court”. (Citing numerous cases in support.)
Affirmed. | [
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Dale Price Justice.
Thomas Lloyd Griswold appeals his conviction of three counts of rape. He was sentenced to three life terms to be served concurrently. The first trial of this mater resulted in a conviction of three counts of rape which was affirmed by this court in Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986). In Griswold v. State, 298 Ark. 397, 768 S.W.2d 35 (1989), we remanded for the trial judge to determine if the appellant was denied effective assistance of counsel. A new trial was ordered, and Griswold now contends the trial court erred in holding that Dr. Beth Griswold could not testify as to the victims’ prior exposure to sexual acts, terminology and fantasies. We affirm.
The appellant was convicted of raping his two nieces, ages thirteen and ten, and his five-year-old stepdaughter. The appellant’s nieces and their mother (the appellant’s sister) were living in the same house with the appellant and his wife. The appellant’s wife had a daughter and two sons by a former marriage who also resided in the house. The rapes of the three girls allegedly occurred while their mothers were working at a poultry plant and the appellant was home alone with the children after school.
The appellant’s nieces subsequently moved into the home of their mother’s brother, Homer Griswold. Homer Griswold was the brother of the appellant and married to Dr. Beth Griswold, a psychologist. The nieces lived with Homer and Beth Griswold for approximately one year. At his trial, the appellant attempted to show through Dr. Griswold’s testimony that the children were thoroughly familiar with sexual acts, terminology and fantasies at an early age. The prosecutor’s objection to this line of questioning on the basis of relevancy was sustained by the trial court. The discussion of the ruling was moved into chambers, where it was learned the appellant intended to have Dr. Griswold testify to statements allegedly made to her by her nieces. The girls’ statements consisted of their exposure to sexual liaisons between their mother and several men and overhearing profane language used during those instances. The appellant argued Dr. Griswold’s testimony was relevant because the jury need to know how the victims acquired their knowledge of sexual matters at such a young age. The trial court determined the proffered testimony of Dr. Griswold was collateral, irrelevant, and had no bearing on the elements of the alleged rapes. The court stated that “it is immaterial where they [the victims] may have gained knowledge of sexual acts.”
Griswold appeals the above ruling, arguing this testimony was relevant, and the trial court’s failure to allow it led to conjecture by the jury that the victims learned all they knew about sexual acts from the appellant. We find no merit to this argument. A.R.E. Rule 401 states:
‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
A.R.E. Rule 402 states “[e]vidence which is not relevant is not admissible.” A ruling on relevancy is discretionary, and the trial court’s decision will not be reversed unless an abuse of discretion is found. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). The proffered testimony of Dr. Griswold had no bearing on the question of the appellant’s guilt. How, when and from whom the victims acquired their knowledge of sexual matters did not make it more or less likely that the appellant committed rape. The trial court did not abuse its discretion in its ruling on this testimony. In addition, the proffered testimony of Dr. Griswold was properly excludable as hearsay. A.R.E. Rule 802; Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).
The Arkansas Supreme Court and Court of Appeals Rule 11 (f) requires that the appellant abstract all objections decided adversely to him in the trial court, together with such parts of the record which are needed for an understanding of the objection when the sentence is death or life imprisonment. The attorney general is to make certain that all objections have been abstracted and brief all points argued by the appellant as well as any other points that appear to involve prejudicial error. Neither party has complied with Rule 11(f), and in order to save the time which would be required to have the case rebriefed, we have examined the record and found no meritorious objections decided adversely to Griswold and no prejudicial error.
Affirmed.
Holt, C.J., Dudley and Newbern, JJ., dissent. | [
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Tom Glaze, Associate Justice.
The sole issue sought to be determined in this case is whether the trial court properly awarded attorney’s fees in a lien foreclosure action. However, we are unable to decide the issue because appellant failed to properly perfect his appeal under ARAP Rule 4. While this issue was not raised by the parties, this court is obliged to address jurisdiction requirements even when the parties do not. Widmer v. Touhey, 297 Ark. 85, 759 S.W.2d 562 (1988). Because the court is without jurisdiction, we dismiss this appeal.
In the action below, appellee attempted to foreclose a mechanics’ and materialmen’s lien against property owned by appellant for work appellee had performed on the property. After a hearing on the matter, the trial court found no contract to exist between the parties, but awarded appellee quantum meruit recovery for work performed. The trial court also awarded attorney’s fees in the sum of $1,400.00 to appellee as costs to be assessed against appellee under Ark. Code Ann. § 16-22-308 (Supp. 1989). A judgment to this effect was entered on November 13, 1989.
On November 17, 1989, appellant field a motion for new trial, raising the issue he now advances on appeal, viz., the trial court erred in applying § 16-22-308, the attorney’s fee statute, in a case where no contract is found to exist. Appellant filed his notice of appeal on December 12, 1989.
Rule 4(c) of the Arkansas Rules of Appellate Procedure provides that when a timely motion for new trial is filed in the trial court by any party, the time for filing an appeal shall run from the date the court either grants or denies the motion. If the court takes no action on the motion within thirty days, it will be deemed denied on the thirtieth day from the date the motion was filed. Rule 4(d) provides that the time prescribed for filing a notice of appeal will be measured from the entry of the order disposing of the motion or from the expiration of the thirty-day period. Finally, and most importantly when considering the procedural events in the present case, Rule 4(c) provides that a notice of appeal filed before the disposition of any new trial motion or, if no order is entered, prior to the expiration of the thirty-day period, shall have no effect.
In this case, there is nothing in the record to indicate the trial court ever made a ruling on appellant’s motion for new trial. In the absence of such a ruling, appellant was required under Rule 4(c) to wait thirty days from the time he filed his motion before filing his notice of appeal. He failed to do so. Instead, appellant filed his notice of appeal on December 12 or only twenty-five days after filing his motion for new trial. Thus, appellant’s notice of appeal was ineffectual. In sum, appellant never obtained a ruling on his motion by the trial judge nor was the judge afforded the thirty-day period in which to act on appellant’s motion. Because the failure to file a timely notice of appeal deprives this court of jurisdiction, Monk v. Farmers Ins. Co., 290 Ark. 38, 716 S.W.2d 201 (1984), we must dismiss this appeal. | [
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Dale Price, Justice.
This is a use tax case in which the appellant appeals from an adverse decision finding the appellee was entitled to an exemption. Three points are relied upon for reversal. We find no merit to any of these issues and affirm.
The appellee, EASCO Hand Tools, Inc. (EASCO), has operated a manufacturing plant in Springdale, Arkansas, in excess of twenty years. EASCO’s wrenches and hand tools are sold throughout the United States as well as foreign countries. In the early 1980’s, EASCO, faced with foreign competition, expanded its plant operations to increase efficiency in its manufacturing process. In 1985 a Computer-Aided Design/Computer-Aided Manufacturing (CAD/CAM) system was purchased out of state for $793,674.41. An audit was performed by appellant Arkansas Commissioner of Revenues (Commissioner), and EASCO was subsequently assessed use tax for unreported purchases of office supplies, repair parts, die block material, machinery and equipment. The assessment was litigated before the Commissioner’s Office of Hearing and Appeals, resulting in an administrative decision upholding the assessment of tax, penalty and interest. EASCO appealed and the case was submitted to the trial court upon stipulations of facts and law together with supporting briefs. The trial court specifically found EASCO established its entitlement to an exemption from use tax on the purchase of the CAD/CAM system and die block materials beyond a reasonable doubt.
The Commissioner first alleges the chancellor erred in finding EASCO was entitled to the machinery and equipment exemption. Entitlement to the exemption will be upheld if EASCO established beyond doubt its CAD/CAM system was used directly in its manufacturing process, creating an “article of commerce.” In addition, the system had to have been purchased by EASCO in order to create an expansion of its existing facilities. Ark. Code Ann. § 26-53-114 (1987).
The CAD/CAM system consists of a main frame computer, four terminals and milling machines for the plant. The milling machines are connected to the computer by cable. The die used in the manufacturing process determines the shape of the tools, the “articles of commerce” produced by EASCO. The dies are formed on site by the CAD/CAM system to strict tolerances, and the physical characteristics of the hand tools are determined from these dies. The dies are placed in stamping machines to produce the finished hand tools. The system can retool dies as they become worn and provides the specifications for quality control. As a direct result of its purchase of the CAD/CAM system, EASCO’s die cost per wrench dropped significantly and the number of persons employed in the plan increased substantially.
The Commissioner argues the system is used to make a die which in turn is used to make an “article of commerce” and, therefore, is not used directly in the manufacturing process. It is pointed out that the “articles of commerce” manufactured by EASCO are wrenches and hand tools, not dies and molds. In other words, the CAD/CAM system is an integral part of the manufacture of dies and molds and not an integral part of the manufacturing process.
In a lengthy and detailed memorandum opinion, the trial court found EASCO had met the requirements of Ark. Code Ann. § 26-53-114. The court stated that the CAD/CAM system performed an essential function directly in the manufacture of tools. It further found the system’s function, designing and manufacturing, directly pertained to the dies, and the dies shaped the wrenches and hand tools which were the “articles of commerce.”
It is well settled that a presumption exists in favor of the taxing power of the state, and a taxpayer has the burden of establishing the right to an exemption beyond a reasonable doubt. Ragland v. General Tire & Rubber Co., 297 Ark. 394, 763 S.W.2d 70 (1989). Tax exemptions must be strictly construed against exemption, and to doubt is to deny the exemption. Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 118 (1987). We review such cases de novo and do not set aside the findings of the chancellor unless they are clearly erroneous. Southern Steel & Wire Co. v. Wooten, 276 Ark. 37, 631 S.W.2d 835 (1982). Under the specific facts of this case, we cannot say the chancellor’s finding that EASCO’s CAD/CAM system was exempt from use tax is clearly erroneous.
The Commissioner next alleges the chancellor erred in applying an “economically essential” test to determine if EASCO was entitled to an exemption on its CAD/CAM system. In this regard, the Commissioner states the trial court improperly determined EASCO’s manufacturing operation would cease if the CAD/CAM system were removed and based this determination upon competition and cost factors. Although the trial court referred to the economic results of removing the CAD/CAM system from EASCO’s manufacturing process in its opinion, we do not view its remarks as applying an economic test in finding that EASCO’s CAD/CAM system was used directly in its manufacturing process. The trial court noted the die work could not be obtained from any other facility in the state, and specifically stated that without the CAD/CAM system, EASCO’s manufacturing process would cease. This comports with the language of Ark. Code Ann. § 26-53-114(c)(3)(A) (1987), which provides in part as follows:
Machinery and equipment used in actual production include machinery and equipment that meet all other applicable requirements and which cause a recognizable, and measurable mechanical, chemical, electrical, or electronic action to take place as a necessary and integral part of manufacturing, the absence of which would cause the manufacturing operation to cease. ‘Directly’ does not mean that the machinery and equipment must come into direct physical contact with any of the materials that become necessary and integral parts of the finished product. . . .
EASCO relies upon our decision in Ragland v. Deltic Farm & Timber Co., 288 Ark. 604, 708 S.W.2d 90 (1986), which upheld a use tax exemption on a crane utilized in a sawmill operation. Deltic constructed a merchandiser which was a physical plant built next to its sawmill operation and supplemented that facility. The crane served the merchandiser primarily and the sawmill secondarily. The Commissioner contended the crane was not used directly in manufacturing, but we noted the uncontradicted proof showed the sawmill department could not operate without the merchandiser department and vice versa.
The Commissioner in the case at bar says that Deltic is distinguishable because if the crane were absent, the manufacturing operation would cease and, in this case, EASCO’s manufacturing of hand tools would continue. He contends the chancellor did not utilize the analysis set forth in Deltic but applied an erroneous “economically essential” test. The chancellor correctly applied Ark. Code Ann. § 26-53-114(c)(3)(A), and we find no merit to this argument.
Finally, the Commissioner contends the trial court erred in determining die block material purchased by EASCO was exempt from tax. The trial court found the die block materials constituted the molds and dies which in turn determined the physical characteristics of the finished product. In its opinion, the court reasoned that “ [s] imply because the material is purchased in raw form and shaped by EASCO instead of being purchased in finished form should not, alone, cause it to be taxable.” The chancellor apparently determined the die block material was exempt pursuant to Ark. Code Ann. § 26-53-114(c)(3)(B)(i) (1987), which provides:
Further, machinery and equipment ‘used directly’ in the manufacturing process shall include, but shall not be limited to, the following:
Molds and dies that determine the physical characteristics of the finished product or its packaging materials;
The Commissioner argues the die block material is tangible personal property and is presumed taxable pursuant to Ark. Code Ann. § 26-53-106 (Supp. 1989). It is also argued that if the die block material is exempt from tax pursuant to Ark. Code Ann. § 26-53-114(c)(3)(B)(i), that exemption is limited to the initial dies and molds under the authority of the Arkansas Department of Finance and Administration’s regulations. The stipulated testimony of two witnesses submitted by EASCO established the die block material was utilized for the making of initial dies and molds and did not include subsequent replacement molds and dies. This testimony was unrebutted. Accordingly, we cannot say the trial court’s finding that the die block material was exempt is clearly erroneous.
Affirmed.
Hays, J., dissents. | [
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J. Fred Jones, Justice.
This appeal questions the trial court’s interpretation of Ark. Stat. Ann. § 42-404 (Repl. 1964) as it relates to the residential qualifica tions of Lynn Davis to serve as Director of the Department of State Police. The statute provides:
“The Director shall be chosen on account of his qualifications and fitness for the office, shall be of good moral character and a resident of the State of Arkansas for at least ten years next preceding his appointment(Emphasis supplied.)
On June 30, 1967, in response to a request from the Governor, the Attorney General issued an opinion holding that Mr. Davis did not meet the residential qualifications. The Governor nevertheless appointed Davis as Director on August 1. The Director of Administration, in view of the Attorney General’s opinion, refused to approve the payment of Davis’ salary.
Davis brought this action for a declaratory judgment finding Mm to be qualified to hold the office. By intervention the Attorney General sought Davis’ ouster by quo warranto proceedings. The trial court held that Davis is legally qualified under the statute. After a careful study of the matter we are forced to the conclusion that the trial court erred in its decision.
The legislature declared in words too plain to be misunderstood that the Director of State Police must have been a resident of the State of Arkansas for at least ten years next preceding his appointment. There can be no doubt about the fact that the lawmakers, in requiring such an extended period of residence within the s'tate, meant to make certain that the person chosen to be Director would be familiar by first-hand observation with the varied and complex problems of law enforcement that confront the State Police Department. No other convincing reason for the ten-year requirement has been brought to our attention.
The question is: Does Davis meet the residential test that the legislature — the final authority in the matter — has seen fit to impose 1 Upon this question the un disputed facts speak so strongly for themselves that hardly any comment by the conrt is necessary.
Lynn Davis was horn in Arkansas in 1933 and lived here nntil March of 1960. At that time his employer in Texarkana, Arkansas, who was developing a residential subdivision a few miles across the state line in Wake Village, Texas, suggested that to promote the sale of lots Davis should buy a house in the subdivision and move into it with his family. Davis did so. From that time on, over a period of more than seven years, Davis did not make his home in Arkansas until he returned to this state to accept the appointment to the directorship of the State Police in 1967.
In Wake Village, Texas, Davis terminated his 'employment with his original employer' after about a year, but he took another job and continued to live in Wake Village until he sought and obtained a position with the F.B.I. in September of 1961. As a federal agent Davis lived with his family for periods of less than a year in Washington, D. C., in three cities in Illinois, and in Denver. In February, 1964, Davis moved to Rock Springs, Wyoming, where he stayed for about two and a half years. In Wyoming — the first state in which he had resided for more than a year since leaving Texas —Davis expressed his intentions about his residence so emphatically as to leave the matter not seriously open to doubt. On May 13, 1966, Davis qualified to vote in Wyoming by appearing before the registrar and making a written statement under oath that he had been a resident of the state for more than a year and was a qualified elector in the state. He did not actually vote in Wyoming, as he admits he intended to do; for he was transferred to an F.B.I. position in California and remained there until he came back to Arkansas to accept the appointment to the office of Director of the State Police Department.
To sum up, according to the undisputed proof Davis and his family lived outside Arkansas continuously for more than seven years immediately preceding the appointment now in dispute. During all that time Davis’ only real ties with Arkansas lay in the fact that his parents lived here, that he owned a house in Texarkana all along (though not always the same house), and that he intended to return to Arkansas when he could find a .iob here that would enable him to support his family. During his seven-year absence from the state Davis did not attempt to vote in Arkansas, did not pay poll tax here, did not pay the state income tax that is levied on residents of the state, and, of course, did not actually make his home in Arkansas.
In a case as clear-cut as this one we need not enter upon an extended discussion of the technical distinctions between “residence,” which ordinarily means physical presence within the jurisdiction (with, of course, customary absences upon business, vacations, and the like), and “domicile,” which differs from mere “residence” by including the subjective intent to maintain one’s permanent home in the jurisdiction. The distinction between residence and domicile has been made, for example, in such cases as Krone v. Cooper, 43 Ark. 547 (1884); Jarrell v. Leeper, 178 Ark. 6, 9 S. W. 2d 778; Missouri Pac. R.R. v. Lawrence, 215 Ark. 718, 223 S. W. 2d 823; Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765; Harris v. Textor, 235 Ark. 497, 361 S. W. 2d 75; Husband v. Crockett, 195 Ark. 1031, 115 S. W. 2d 882; Smith v. Union County, 178 Ark. 540, 11 S. W. 2d 455; Shelton v. Shelton, 180 Ark. 959, 23 S. W. 2d 629; and other cases far too numerous to mention.
Even if we agreed with the trial court that our statute required only “domicile,” still appellee could not prevail. Disregarding his move- to Texas which does not constitute a necessary private business absence under Article 19 § 7, his family lived with him for two and one-half years in Wyoming where he declared his intentions as to residence under oath. In order to be a qualified elector in Wyoming, one must have been a resi dent of the state for at least one year and of the connty in which he proposes to vote for at least sixty days. Article 6, § 2, Constitution of Wyoming; Wyoming Statute, § 22-118.3j. Residence under the Wyoming election statute is defined as that place in which a person’s habitation is fixed and to which, whenever he is absent, he has an intention of returning. Wyoming Statute, § 22-118.3k. The last cited subsection of the statute also provides that a person must not be considered to have gained a residence in any county into which he comes for a temporary purpose merely, without the intention of making such county his home. This action of appellee completely negates any vague and indefinite expressions of a desire to return to Arkansas, insofar as determination of place of domicile is concerned.
The point of controlling importance, which cannot possibly be swept under the judicial rug, is that the legislature meant for the Police Director to have actually lived in the state for ten years next preceding his appointment. Lynn Davis lived outside the state for more than seven of those ten years. He is thus not qualified to hold the office.
Reversed and remanded for the entry of a judgment consistent with this opinion.
Ward, J., dissents. | [
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Henry Woods, Special Justice.
This is a suit for property damage and personal injuries filed by appellants in circuit court. Litigation resulted when a cab owned by appellant North Little Eock Transportation Co., Inc. and occupied by appellant Baxter skidded on water flowing across a street from a lawn sprinkling system owned by appellees Mr. and Mrs. Joe P. Fink-beiner. At the close of all testimony, the trial judge directed a verdict for the appellees, and the sole issue is the correctness of the ruling. Two basic questions must be answered. First, were the Finkbeiners negligent? Secondly, even if they were not negligent, can liability be imposed under the doctrine of Rylands v. Fletcher, L.R. 3 H.L. 330, i. e., under a theory of absolute or strict liability?
There is no material dispute as to the facts. Mr. and Mrs. Joe Finkbeiner, the appellees, own a home on the south side of Cantrell Eoad near the crest of what is known as Cantrell Hill in western Little Eock. On June 10, 1966 Mrs. Finkbeiner decided to activate their lawn sprinkling system for the first time since the winter months. To accomplish this, a city water company employee, using a special tool, must first open a cutoff valve located in a steel box near the road. After this valve is opened, the sprinkling system is then controlled manually by two toggle switches on the porch of the Finkbeiner home, each of which controls the sprinkler heads on one-half of the lawn. In response to a call by Mrs. Finkbeiner, a water department employee opened main cutoff valve sometime between 9:00 and 9:30 A.M. The sprinkler heads on one side of the lawn immediately began operating, and Mrs. Finkbeiner was so advised by the water company employee. She told him to leave it on, that she would turn on the other side, and cat both off when she had finished watering the yard. There is no evidence in the record that either Mrs. Finkbeiner or the water company employee then realized that something was amiss with one of the toggle switches.
At approximately 11:00 A.M. Mrs. Finkbeiner attempted to cat off the sprinkler system,, but one of the switches wonld not operate. Mrs. Finkbeiner immediately called her husband at his meat packing plant, and the plant’s chief maintenance engineer was sent to repair it. At the same time she called the city water department and asked them to send someone to cut off the main valve. Mr. Finkbeiner’s maintenance engineer arrived in a few minutes and was attempting to repair the switch at the time of the accident - hereinafter described.
Water from the sprinkling system flowed into Cantrell Road and down the curb on the south side for about a block until it reached a point where the road cruves from its generally eastward direction. At this point the water continued eastward, crossing the road in rather large quantities. At approximately 11:35 A.M. a westbound cab owned by appellant North Little Rock Transportation Co., Inc. and occupied by appellant Baxter skidded on the wet road surface and crashed into a telephone pole damaging the cab and injuring Mr. Baxter.
Mrs. Finkbeiner denied any knowledge that the water on this occasion had been discharged in sufficient quantity to flow across Cantrell Road, and both appel-lees denied knowledge of such flow on any previous occasion. However, the sprinkler system had never been permitted to operate for this length of time. The Fink-beiners testified that in six years of occupancy the sprinkling system had been checked on several occasions and the switches had never before given trouble.
The rule with regard to negligence in this type of fact situation is given in the Restatement, Second, Torts § 368 as follows:
“A possessor of land who creates or permits to remain thereon ... an artificial condition so near an existing highway that he realizes or should realise that it involves an unreasonable risk to others accidentally brought into contact with such condition while travelling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who (a) are travelling on the highway. . .”
Here the condition was “created” by the defective switch. Did the Finkbeiners fail to use ordinary care with respect to its condition? This question must be answered in the negative. The sprinkler system had been checked on several prior occasions. This switch had never given trouble before. The cases, including one in Arkansas, uniformly refuse to predicate negligence on this basis alone. Haizlip v. Rosenberg, 63 Ark. 430, 39 S. W. 60 involved a defective ballcock in a water closet. “The appellant did not know, and had no actual notice that the water fixtures were in bad repair before or at the time of the overflow.” Id. at 431, 39 S. W. at 61. As was said in a leading English case almost identical in facts to Haislip, there was “no reason to suspect the valve had given way or was in any danger of giving way or that anything was wrong with the closet, and I see no negligence in not guarding against a danger which there is no reason to anticipate.” Ross v. Fedden, 7 L.E. 661, 662 (Q.B. 1872). See also Blake v. Land and House Property Corp., 3 T.L.R. 667 (Q.B. 1887) for similar facts and result; Armstrong v. Milgrim, 172 N.Y.S. 454 (actual or constructive notice to landowner necessary to charge landowner with negligence in leakage of pipe from defective valve); Uhl Bros. v. Hull, 130 Wash. 90, 226 P. 723 (no negligence where leakage from concealed pipe, which could not be discovered except with great difficulty); Reedy v. St. Louis Brewery Ass’n 161 Mo. 523, 61 S. W. 859, 53 L.R.A. 805 (no negligence on part of brewery whose pipe burst and discharged water across sidewalk; water froze and caused plaintiff to fall).
Even though a landowner might not be negligent in causing a discharge of water from his premises onto adjoining property or into an abutting highway, ordinary care might well require that immediate steps be taken to correct the condition, once it is discovered. In the words of the above-quoted section of the Restatement, there may be a failure of ordinary care if the landowner “permits it to remain.” Yet in this respect the actions of the Finkbeiners were exemplary. Upon discovering that the switch was broken, Mrs. Finkbeiner immediately called her husband, who dispatched his chief maintenance man to make repairs. She also called the water company and asked them to send a man to cut off the main valve.
Appellants, however, urge that a jury question was made on the failure of the Finkbeiners to warn them that the water was flowing across Cantrell Road and creating a hazardous condition to traffic. Such a duty on their part could only arise if they knew or should have known this fact. There is no evidence in this record that they had actual knowledge, so this allegation must necessarily be based on the contention that they should have known the course and possible result of the water’s flow. We cannot sustain this contention. The point where the water crossed Cantrell Road was a block from the home. On previous occasions when their sprinkler system was used, the water flowed along the curb on the south side of Cantrell Road into a drain past the point of the accident. We do not think it would be reasonable to charge them with constructive knowledge not only that the water would cross the road, but that a car travelling up the hill would skid on the wet surface. Nor do we consider that ordinary care would dictate that Mrs. Finkbeiner should go more than a block from her home and flag traffic proceeding up Cantrell Hill. To control traffic of the speed and density found at this location would certainly have been beyond the competence of a housewife. Mr. Finkbeiner is an executive in a meat packing firm located in the extreme eastern part of Little Rock at a considerable distance from his home. Tlie accident happened about thirty minutes after his wife notified him telephonically of her difficulties with the switch. Even if he had realized on the basis of a phone call that a dangerous condition was being created for traffic on Cantrell Road, we. do not see how he personally could have taken steps to warn motorists, in view of the time element. He did immediately dispatch bis' chief maintenance man to repair the switch, and Mr. Finkbeiner was at the scene within an hour after'his wife’s call.
Appellants place principal reliance on the Texas case of Skelly Oil Co. v. Johnson, 151 S. W. 2d 863, which bears some superficial resemblance to the case at bar. Water from Skelly’s cooling tower was blown by the wind onto a nearby road, causing a slippery surface on which plaintiff’s car skiddel. The clear distinction between Shelly and the case at bar appears in the court’s finding that “when wind was from the west, water would be blown from the cooling towers onto the road east of the towers and for a number of years wet places had been created. . .” (Emphasis added.) The distinction is made more evident by the Texas court’s principal authority, Stephens, Adm’r v. Deickman, 158 Ky. 337, 164 S. W. 931, a case wherein a downspout discharged water across a sidewalk, ice formed, and plaintiff was injured in a fall. The court in that case said:
“[I]n case such an obstructon or nuisance should arise suddenly or unexpectedly, it is the landlord’s duty to remove the obstruction or nuisance as soon as he has knowledge of its existence, or could have had such knowledge by the exercise of ordinary care. In the case at bar the ice had remained upon the sidewalk for more than two weeks before the accident, and to the knowledge of the appellee.” (Emphasis added.) 164 S. W. at 934-35.
Skelton v. Thompson, 3 Ont. Rep. 11, involved the same fact situation, except that the ice had formed two or three hours before the accident. In conformity with the rule expressed in the above Kentucky case, judgment was for the defendant because there was in finding that the abutting owner either knew or should have known of the slippery condition which caused the plaintiff to fall. A similar view-was expressed in Lansing v. John Strange Paper Co., 227 Wis. 439, 278 N. W. 857. The defendant’s plant emitted vapor from exhausts in proximity to a bridge, causing ice to form on the bridge. Plaintiff sustained injuries when his car skidded on the ice. The court pointed out - that there was a complete absence of any proof that ice had ever formed theretofore upon the bridge as a result of vapor emitted from defendant’s plant. In denying liability it was said that “to sustain liability it is not enough to show that the defendant permitted a dangerous condition to exist. It must also be shown that it was negligently permitted to exist. If risks of harm cannot be foreseen by a reasonably prudent and intelligent man, the risk is not unreasonable, hence there is no negligence, consequently, no liability.” 278 N. W. at 859.
The question therefore shades into what is a patent defect in appellants’ entire negligence case- — the absence of foreseeability. Foreseeability is a necessary ingredient of actionable negligence in Arkansas. Collier v. Citizens Coach Co., 231 Ark. 489, 330 S. W. 2d 74. As Justice Leflar wrote in Hill v. Wilson, 216 Ark. 179, 183, 224 S. W. 2d 797, 800: “There is no such thing as ‘negligence in the air.’ Conduct without relation to others cannot be negligent; it becomes negligent only as it gives rise to an appreciable risk of injury to others.” See also the celebrated opinion by Judge Cardozo in Palsqraf v. Long Island R. R. Co., 248 N. Y. 339, 162 N. E. 99. The same concept is expressed in the above- cited Restatement, Second, Torts, $ 368 with, its requirement that the possessor of lands “realizes or should realize (that the condition) involves an unreasonable risk to others accidentally brought into contact with such condition. .
It follows from what has been said that appellants may not maintain an action against the Finkbeiners based upon negligence. This brings us to an examination of the other possible basis of liability. In the 1868 English case of Rylands v. Fletcher, L.R. 1 Ex. 265, aff’d L.R. 3 H.L. 330, the defendant constructed a reservoir on the site of an abandoned mine. Water seeped into the mine and thence into shafts of plaintiff’s mine on adjoining property. No negligence was found on the part of defendant, but liability was nevertheless imposed in the Court of Exchequer under a rule formulated in the following terms:
“We think the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” Id. at 279.
In the House of Lords, Lord Cairns modified the rule somewhat by pointing out that the defendant would not be liable if the activity were a natural use of the land.
If the rule expressed in the Court of Exchequer were applied broadly and literally in the case at bar, a strong argument might be made for imposing liability on the Finkbeiners. Indeed, in a number of early English cases, the doctrine of Rylands v. Fletcher was used to impose liability in factual situations somewhat similar to that existing in the case at bar. See Charing Cross Electric Supply Co. v. Hydraulic Power Co., 3 K. B. 722, 83 L.J.K.B. 1352 (water in high pressure mains under street flowed out from breaks not caused by negligence of water company and damaged plaintiff’s cables); Snow v. Whitehead, 27 Ch. Div. 588 (water collected in cellar of defendant’s house and then found its way into cellar of adjoining house. “Anyone who collects upon his own land water, or anything else, which would not in the natural condition of the land be collected there, ought to keep' it in at his peril, and that if it escapes, he is liable for the consequences.” Id. at 591) ; Ballard v. Tomlinson, 29 Ch. Div. 115 (defendant dumped sewage and waste on property which polluted his well and by percolation polluted plaintiff’s well on adjoining property).
The principle was not long in finding its way into American courts, the earliest decision being Ball v. Nye, 99 Mass. 582, where filthy water from defendant’s land percolated into plaintiff’s well. Another early Massachusetts case, Shipely v. Fifty Associates, 101 Mass. 251, involved its application to facts somewhat similar to those in the case at bar in that snow and ice slid from defendant’s roof onto sidewalk causing plaintiff to fall. The same basis of liability was applied on identical facts in Hannem v. Pence, 40 Minn. 127, 41 N. W. 557. There are many other American cases where the rule in Rylands v. Fletcher, supra was used to impose absolute liabilty for the escape of water from defendants’ property. See for instance, Weaver Mercantile v. Thurmond, 68 S. W. 530, 70 S. E. 126 (defendant’s water storage tank burst and damaged plaintiff. “Therefore, if a man brings water upon his premises by artificial means, and collects and keeps it there, he is bound at his peril to see that the water does not escape. . .” 70 S. E. at 127); Bridgman-Russell Co. v. Duluth, 158 Minn. 509, 197 N. W. 971 (water main broke and damaged plaintiff’s property); Defiance Water Co. v. Olinger, 54 Ohio St. 532, 44 N. E. 238 (standpipe burst and escaping water injured plaintiff in nearby house); Baltimore Breweries Co. v. Ranstead, 78 Md. 501, 28 A. 273 (water escaped from defendant’s storage tank and flooded plaintiff) ; Wilson v. City of New Bedford, 108 Mass. 261 (water seeped from water reservoir to adjoining landowner^ cellar); Healey v. Citizens Gas & Elec. Co., 199 Iowa 82, 201 N. W. 118 (water percolated from defendant’s dam and reservoir and flooded plaintiff’s land); Kall v. Carruthers, 59 Cal. App. 555, 211 P. 43 (water from ricé grower’s land percolated and damaged land of adjoining owner); Norfolk & W. Ry. Co. v. Amicon Fruit Co., (4th Cir.) 269 F. 559 (leakage from defendant’s pipeline, caused water to flow into plaintiff’s cellar and injure goods).
After the first rather broad applications of the principle, the English courts began to emphasize its initial limitations, expressed by Lord Cairns in the House of Lords, that the doctrine applied only to a “non-natural” use of the land. A few years later English and Commonwealth cases are illustrative. In Rickards v. Lothian, A. C. 263 [1913,] 82 P.J.P.V. 42, there was an overflow of a lavatory on the top floor and damage to stock in trade on the lower floor, caused by the malicious act of a third person. In denying liability urged under the rule of Rylands v. Fletcher, Lord Moulton pointed out that “it is not every use to which land is put that brings into play that principle. It must be some special use, bringing with it increased danger to others, and must not be the ordinary use of the land.” Id. at 280. See also Torette House v. Berkman, 62 C.L.R. 637 (Australia).
One of the best illustrations of the more recent attitude of the English courts is Peters v. Prince of Wales Theatre, 1 K. B. 73 [1943], a case involving a sprinkler system, albeit not the same type as involved in the case at bar, but one installed in a theatre to prevent fires. The system was released by a freeze, and water damaged plaintiff’s stock and trade on adjoining premises. The trial judge held the defendant liable under the authority of Rylands v. Fletcher, refusing to accept the analogy of the escape of water brought on premises merely for such domestic purposes as water closets, lavatories, arid baths. “It is a system in which there is potential danger of the escape of an enormous quantity of water.”
The Court of King’s Bench reversed and in the course of its opinion stated:
“In the present case, we are concerned with a building, the greater part of which was, at the time of the damage, used as a theatre, where not only must special precautions against fire be taken, but these spi’inlders are by the local authority required to be fitted. Having regard therefore to the nature of the building, the installation would appear to be ordinary and usual. . .” Id. 76.
The American decisions have been sharply divided in their acceptance of the rule of Rylands v. Fletcher. See the tabulation of the various jurisdictions in Prosser, Law of Torts, 3rd Ed., 523 et seq. But even those jurisdictions which apply it now accept the limitation of “non-natural use”, emphasized in the above English cases. Two cases are good illustrations in the context of the present fact situation. In MrCord Rubber Co. v. St. Joseph Water Co., 181 Mo. 678, 81 S. W. 189, a water pipe on defendant’s premises broke during a freeze and damaged plaintiff’s goods. The doctrine of Rylcmds v. Fletcher was held inapplicable to these facts:
¡ < rpiiere ig a wide difference between a great volume of water collected in a reservoir in dangerous proximity to the premises of another, and water brought into a house, through pipes, in the manner usual in all cities, for the ordinary use of the occupants of the house. Whilst water so brought into a house cannot literally be said to have come in in the course of what might be called, in the language above quoted of the Lord Chancellor, ‘natural user’ of the premises, yet it is brought in by the method universally in use in cities, and is not to be treated as an unnatural gathering of a dangerous agent. The law applicable to the caging of ferocious ani mals is not applicable to water brought into a house by the pipes in the usual manner.” 81 S. W. at 193.
The trial court in Shanander v. Western Loan & Bldg. Co., 103 Cal. App. 2d 507, 229 P. 2d 864, 26 A.L.R. 1039, applied the doctrine of Rylands v. Fletcher to a case in which a pipe in an upper floor apartment burst and damaged premises below. In reversing, the court quoted 32 Am. Jur. 626-67 as follows: “The rule ... is not applicable to the act of a landlord in providing his building with artificial means for supplying it with water. Such introduction of water is an ordinary and natural use.” 229 P. 2d at 866. It is interesting to note that one of-the cases cited in this opinion is the Arkansas decision of Haizlip v. Rosenberg, supra.
This brings us to a consideration of the rule of Rylands v. Fletcher in Arkansas. Its history is interesting. See Sharp, Absolute Liability in Arkansas, 8 Ark. L. Rev. 83. After express repudiation in the early case of Southwestern Tel. and Tel. Co. v. Beatty, 63 Ark. 65, 37 S. W. 570, the rule was again considered in a 1922 case, Constantin Refining Co. v. Martin, 155 Ark. 193, 244 S. W. 37, which is in some respects similar to the case at bar, but presents a far stronger factual situation for the application of absolute liability. Defendant drilled and capped a gas well. Gas passed through a fissure in the earth and escaped through a crater 950 feet away on adjoining property, attracting crowds to watch the escaping gas throw mud and water high into the air. Plaintiff’s decedent and four other bystanders were killed in an explosion apparently caused by someone’s striking a match to light a cigar. In reversing and dismissing a judgment for the plaintiff, the court found no negligence and then refused to apply Rylands v. Fletcher. “The doctrine .of that case has not been generally accepted in this country, and We think that in its full scope it is directly in conflict with the decisions of this court.” Id. at 200, 244 S. W. at 39.
In spite of the above language, this court along with many others has applied the doctrine of strict li ability by calling certain conduct a nuisance. Sharp, op. cit. supra, 89. “The reports are filled with cases where this doctrine has been applied, and it may be confidently asserted that no authority can be produced, holding that negligence is essential to establish a cause of action for injuries of such character.” Czarnecki v. Bolen-Darnell Coal Co.., 91 Ark. 58, 61, 120 S. W. 376, 377. Dean Prosser points out that “there is in fact probably no case applying Rylands v. Fletcher which is not duplicated in all essential respects by some American decision which proceeds on the theory of nuisance and it is quite evident that under that name the principle is in reality universally accepted.” Prosser, Law of Torts, 3rd Ed. 529.
The somewhat confused status of Rylands v. Fletcher in Arkansas was clarified in 19491 when this court decided Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820 and unequivocally adopted the position of the 1939 Restatement of Torts §§ 519, 520. These sections are nothing more than a codification of the principle of Rylands v. Fletcher, with a limitation to an “ultrahazardous activity” of the defendant, defined as one which “necessarily involved a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of utmost care” and “is not of common usage.” See full discussion of Chapman case in Harper & James, Law of Torts (1956) § 28.27 pp. 1592-93 and by Dean Prosser in his 1955 address to the Arkansas Bar Association on “Recent Developments in Law of Negligence,” 9 Ark. L. Rev. 81, 85.
Certain conclusions necessarily follow from the authorities cited above. Prior to 1949 the principle of Rylands v. Fletcher had been expressly repudiated in Arkansas, even though it may have been applied under the guise of calling certain conduct a nuisance. However, application of the doctrine, completely undiluted, would not help these appellants, because it was never applied to the escape of water from a domestic household water system. By no stretch of the imagination conld the use of a lawn sprinkler be called a ‘‘non-natural use” of the land, so as to meet the test applied by Lord Cairns, in modifying Rylands v. Fletcher in the House of Lords. A fortiori, appellants cannot meet the requirements of the 1939 Restatement, Torts §§ 519, 520. Operating a lawn sprinkling system is not an “ultrahazardous activity.”
Since appellants have not under the testimony established either negligence on the part of defendants or a case for the application of the rule of absolute liability, the judgment must be affirmed.
Affirmed.
George Rose Smith, J., disqualified. | [
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George Rose Smith, Justice.
We cannot reach, the merits of this case. The timely filing of a notice of appeal is essential to our jurisdiction. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962); see General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40 (1954). Here the notice was filed too late.
The appellant, acting pro se, filed his complaint in the Sebastian Circuit Court for damages arising from an asserted breach of a contract by which the appellees sold him certain land in Oklahoma. After a series of interlocutory proceedings the court entered its final judgment on September 13, 1966, sustaining the defendants’ demurrer and motion to strike and dismissing the complaint for failure to state a cause of action.
On October 7 the plaintiff filed a motion asking the court to rescind its order of September 13 and to enter a summary judgment for the plaintiff. On November 17 the trial judge denied that motion. Two days earlier, on November 15, the plaintiff had filed his notice of appeal from the September 13 judgment. That filing was after the expiration of the thirty days allowed by the statute, supra. On November 23 he filed a second notice of appeal, referring both to the September 13 judgment and to the November 17 denial of his motion.
The motion to rescind the September 13 judgment is to be treated as a motion for a new trial. Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797 (1949). Such a motion to vacate does not extend the time for appealing from the original'final judgment; for if that were so the appellant could obtain a review of the judgment even though he had not taken his appeal within the time allowed by statute. Sheffield v. Brandenburg, 190 Ark. 60, 76 S. W. 2d 984 (1934); Pearce v. People’s Sav. Bk. & Tr. Co., 152 Ark. 581, 238 S. W. 1063 (1922).
Nor has the appellant brought himself within Act 123 of 1963, Ark. Stat. Ann. §§ 27-2106.3 to 27-2106.6 (Supp. 1965), which we construed in St. Louis S. W. Ry. v. Farrell, 241 Ark. 707, 409 S. W. 2d 341 (1966). As we said there: ‘ ‘ Section 1 of Act 123 requires that any motion for a new trial be filed within the time provided by law. That time is ordinarily a period of fifteen days after the rendition of the verdict. Section 27-1904.” In the case at bar the plaintiff’s motion to rescind the Judgment, which, as we have seen, was in substance a motion for a new trial, was not filed within fifteen days after the entry of the September 13 judgment. Section 27-1904 provides for an extension of the fifteen-day limit in exceptional circumstances such as an unavoidable delay, but no such showing is made here. It follows that the belated filing of the motion to rescind did not bring the appellant within the purview of Act 123.
The clerk of this court was right in accepting the record when it was tendered for filing, for on its face there was a timely notice of appeal from the trial court’s denial of the motion to rescind. That denial, however, did not extend the time for appealing from the original final judgment or from prior interlocutory orders, and no other error is asserted.
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Donald L. Corbin, Justice.
Appellant, Gifford Ray, was convicted of the first degree murder of Melvin Ward and was sentenced to life imprisonment. He raises the following points on appeal: 1) he was denied his fundamental constitutional right to present a defense; 2) his arrest was pretextual and the subsequent seizure of evidence was without constitutional justification; and 3) the trial court erred in denying his motion for continuance. We find no merit in these points, and we have determined, in accordance with Ark. Sup. Ct. R. 11 (f), that the trial court made no error prejudicial to the defendant. The judgment of conviction is affirmed.
The charge against appellant arose from the following undisputed facts. Melvin Ward was shot at approximately 10:30 p.m. on February 14,1990, as he was leaving Shari Ray’s trailer near Malvern. He was taken to the hospital by ambulance and died there a short time later. As he lay on the ground before the ambulance arrived he told Deputy Sheriff Kirk McClenahan of the Hot Spring County Sheriffs Department that he did not know who shot him.
Shari Ray, appellant’s former wife, lived next door to Doyle Wallis, her father. Although neither Ms. Ray nor Mr. Wallis saw appellant that night, they both told investigating officers that they thought appellant shot Ward. Ms. Ray said appellant called her about thirty minutes before the shooting and said if he could not have her nobody could. The investigating officers found prints in the leaves where the assailant knelt as he shot Ward. They also found a thermal knit shirt nearby. Mr. Wallis said that appellant had such a shirt.
Eyewitness testimony placed appellant on the road about fifty yards from Shari Ray’s trailer around eleven o’clock the night of the shooting. Henderson Bates, a resident of Malvern, testified that as he was driving home from being at the local hospital with his family he saw appellant jogging on the side of the road. He said appellant was not wearing a shirt and was carrying a single barrel shotgun in his right hand. Mr. Bates said that he had known appellant through his work for several years and that he was certain of his identification of appellant. He said appellant crossed the road at no more than fifty feet directly in front of his truck and, besides the truck’s headlights, there was a street light, which aided his vision.
Appellant argues in his first point that his federal and state constitutional rights of due process, fair trial, confrontation, and compulsory process were violated when the trial court granted the state’s motion in limine to exclude, among other evidence, alleged threats to the victim made by a third person. Appellant made an extensive offer of proof. He sought to present this admittedly circumstantial evidence to show that someone else had a motive to kill Melvin Ward and might have done so.
New rights are more fundamental than that of an accused to present evidence in his own defense. Washington v. Texas, 388 U.S. 14 (1967). In exercising this right, however, the accused not only must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence, Chambers v. Mississippi, 410 U.S. 284 (1973), but also must show that the evidence is both material and favorable to his case, United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).
Other courts, in cases of circumstantial evidence, have held that threats to kill the victim made by other parties are relevant to prove motive to commit the killing on the part of some person other than the accused, and have allowed evidence of the threats. Smith v. State, 33 Ark. App. 37, 800 S.W.2d 440 (1990); Murphy v. State, 36 Tex. Crim. 24, 35 S.W. 174 (1896). See also McAdams v. State, 378 So. 2d 1197 (Ala. Crim. App. 1979). However, in those cases the proffered evidence involved more than just a threat.
The proffered evidence in the case at bar did not include any specific threats and certainly no threats to kill. It consisted of a March 1, 1989 incident report made by a security service at Chamberlain, Inc., a Hot Springs business, the transcript of an interview of Grace Bull conducted by the Hot Spring County Sheriffs Office, and the testimony of three other witnesses.
The incident report was dated March 1, 1989, nearly a year before Melvin Ward was shot. The report stated that a woman called Chamberlain, Inc., gave the name Grace and said, “if Mel Ward did not return her call she would blow the place up,” and “ [s] he also made some threat on Mel Ward’s person.” The report further stated that the message was given to Mel Ward.
Given the date of the call and its content, its relevance is questionable. But, the evidence here was excluded under Ark. R. Evid. 403, which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
An exclusion of evidence under this rule is a matter within the sound discretion of the trial judge, and his decision will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988); Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618(1987). Considering the remoteness in time of the reported call and the absence of any subsequent calls or actions stemming from the call, we cannot say that the report was either material or particularly favorable to appellant’s case. Therefore, we cannot say the trial court abused its discretion in excluding it from evidence.
Grace Bull said in the interview with the sheriffs department that within the past month she left two letters for Ward at his house. She explained the content of the letters as being expressions of love and frustration, not threats to kill. She also said she was home with her son the evening of the shooting, and Jim Coster, a friend of hers, stopped by at about 9:30 to give her a valentine.
The trial court, in rejecting appellant’s attempt to introduce the transcript of the Grace Bull interview, said that it was collateral and would be excluded under Rule 403. He also stated her testimony was not material. Again, we cannot say the court abused its discretion in excluding this evidence.
The three witnesses whose testimonies were offered were Joyce Lynette Sevier, the woman with whom Ward lived until four days before his death; Anne Ward, Ward’s former wife; and Shari Ray, the woman whose house trailer Ward was leaving when he was shot. Ms. Sevier said that she knew of two letters that someone left for Ward at his house in the month preceding his death. She said she only read one of them and that it said, “it’s eleven o’clock Friday night and you’re not home and I think you’re the most vile, disgusting person I have ever met and you will pay for what you have done to me and it was signed Grace.”
Ms. Ward said that one night about a year before Ward was killed she received several calls from Grace Bull. She said Ms. Bull made irrational threats about putting articles in the newspaper concerning Ms.- Ward’s daughter being an unfit mother.
Shari Ray said that on January 27, 1990, while at Ward’s house, she saw a note, which she looked at only briefly. She said she did not know exactly what the note said or who wrote it, but it was something to the effect that whoever wrote it finally found where Ward lived and would get even with him.-
As there are no specific threats, we cannot say the trial court’s finding the proffered testimony .to be. collateral and excludable under Rule 403 to be an abuse of discretion. Appellant has not demonstrated that the proffered evidence is either material or necessary to his defense. His right to .present it, therefore, must give way to the trial court’s duty to conduct the trial in accordance with the rules of evidence. Based on the foregoing, we cannot say the exclusion of the proffered evidence denied appellant any right guaranteed by the constitution.
Appellant next argues that his arrest was pretextual and neither supported by probable cause nor justified as any other constitutionally acceptable deviation from the warrant requirement. He claims that because of this allegedly illegal arrest the following evidence was seized and eventually admitted at trial: a spent. 12 gauge shotgun shell, an unspent. 12 gauge shotgun shell, a statement he made that he shot a dog earlier that day, and the results of a trace metal examination.
We examined the law regarding pretextual arrests in Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986), and Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). In finding a pretextual arrest in Richardson, we recognized that although no distinct rules for defining pretextual arrest had been articulated, pretext is a matter of the arresting officer’s intent, which must be determined by the circumstances of the arrest; where the intent of the officer is to make an arrest as an excuse for making a search for evidence of a different and more serious offense for which no probable cause to arrest exists, there is a pretextual arrest. In Hines we distinguished the facts in Richardson and stated:
Claims of pretextual arrest raise a unique problem in the law- — deciding whether an ulterior motive prompted an arrest which otherwise would not have occurred. Confusion can be avoided by applying a “but for” approach, that is, would the arrest not have occurred but for the other, typically the more serious, crime. Where the police have a dual motive in making an arrest, what might be termed the covert motive is not tainted by the overt motive, even though the covert motive may be dominant, so long as the arrest would have been carried out had the covert motive been absent.
Hines, 289 Ark. at 55, 709 S.W.2d at 68. In Hines, we held that, under the circumstances presented, the arrest was not pretextual and, thus, there was no reason to apply the fourth amendment exclusionary rule.
Appellant’s arrest resulted from the following circumstances. Deputy Sheriff Mike Collie, after being told by an investigating officer at the scene of the shooting that appellant was a suspect, drove to appellant’s house. As he passed the house he could see appellant inside through the living room window. Deputy Collie pulled in a driveway about a quarter of a mile down the road and observed appellant’s house. He saw appellant leave in his car; Deputy Collie followed him. When Deputy Sheriff Alvin Lee arrived in the area, Deputy Collie turned on his blue lights and appellant pulled over. After appellant got out, Deputy Collie saw a spent .12 gauge shotgun shell in the front seat of appellant’s car and picked it up. At that time Deputy Collie did not know what kind of gun was used in the shooting. Within two minutes of the initial stop, Henry Efird, an investigator with the Hot Spring County Sheriff’s Department, arrived and Deputy Collie gave him the spent shotgun shell. Investigator Efird told appellant he was under arrest as a suspect in the shooting, advised him of his Miranda rights, told him they wanted to do a gunshot residue test on his hands and administer a breathalyzer, and took him to the sheriff’s office.
Investigator Efird did not ask any questions while en route to the office, but appellant made the statement about shooting a dog earlier in the day. Upon arriving at the station, Investigator Efird administered a gunpowder residue test and Deputy Lee administered a breathalyzer test. During an inventory of appellant’s personal property, Raymond Crow, the jailer at the Hot Spring County Sheriffs Department, found the live .12 gauge Super X shotgun shell in appellant’s pocket.
Pursuant to Ark. R. Crim. P. 3.1, a law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects has committed a felony. See Beebe v. State, 303 Ark. 691, 799 S.W.2d 547 (1990). For purposes of this rule, “reasonable suspicion” means a suspicion based upon facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Ark. R. Crim. P. 2.1.
Deputy McClenahan, one of the first officers to arrive at the scene of the shooting, knew at the time there was an outstanding warrant against appellant for terroristic threatening, which was issued pursuant to an affidavit signed by Shari Ray. He also knew appellant caused disturbsances in the area on past occasions. When he was told at the scene that Gifford Ray had done it, he radioed in to the dispatcher that appellant was a possible suspect and personally related that information to Deputy Collie. A warrantless arrest is to be evaluated on the basis of the collective information of the police. Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981). Given the information the officers had at the time of the stop, it was reasonable for Deputy Collie to believe that appellant committed the shooting.
When he arrived at the location of the stop, Investigator Efird had already been to the scene of the shooting and to the hospital. At the scene of the shooting Deputy McClenahan told him that appellant was a “possible suspect.” Mr. Wallis told him that he thought appellant did it and that appellant wore thermal shirts like the one that was found. At the hospital emergency room the physician who treated Ward’s gunshot wounds gave Investigator Efird a shotgun pellet that had fallen from Ward’s body. Investigator Efird arrested appellant following Deputy Collie’s giving him the spent shotgun shell. Ark. R. Crim. P. 4.1 authorizes a law enforcement officer to arrest a person without a warrant if he has reasonable cause to believe that such person has committed, among other offenses, a felony or a traffic offense involving driving a vehicle while under the influence of any intoxicating liquor. Probable cause to arrest without a warrant does not require that degree of proof sufficient to sustain a conviction. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986). Under the circumstances here, we cannot say appellant’s arrest was pretextual.
Appellant was arrested; the gunpowder residue test and breathalyzer were administered; and he was booked for driving a vehicle while under the influence of an intoxicating liquor. We determined the arrest was made in compliance with the law. Appellant raises no contention regarding the breathalyzer, but claims the gunpowder residue test was administered in violation of his constitutionally protected rights. Under the circumstances, we disagree.
The gunpowder residue test was administered because appellant was a suspect in the shooting. Under exigent circumstances, such as where the opportunity to make the test will exist only for a short time, certain warrantless instrusions have been held to be reasonable and not in violation of any protected rights. See Schmerber v. California, 384 U.S. 757 (1966); United States v. Bridges, 499 F.2d 179, cert. denied, 419 U.S. 1010 (1974). Appellant submitted to the test without protest and we find the test was reasonable in light of the exigent circumstance. Had appellant washed his hands, the chance to conduct the test would have been gone.
Although appellant was eventually charged and held for driving while under the influence of liquor, the police actions taken in regard to his being a suspect in the shooting did not violate his constitutionally protected rights.
Appellant next argues the court erred in denying his motion for continuance. The denial of a motion for continuance is within the discretion of the trial court and will be reversed only for an abuse of discretion. Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989). The appellant bears the burden of showing that the trial court’s denial of a continuance was an abuse of discretion, and, in order to show abuse of discretion, the appellant must show that he was prejudiced. Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990). In exercising its discretion concerning a request for a continuance to obtain the presence of a witness, the following factors should be considered by the trial court.: (1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990); Ark. Code Ann. § 16-63-402 (1987). Furthermore, where there is no evidence that a witness can ever be procured, denial of a continuance is proper. Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).
Appellant contends that a proper defense at trial required the presence of Grace Bull and, as she made herself unavailable for service, the case should have been continued in order for him to locate her. Under the circumstances presented, we do not agree.
This case was originally set for trial on June 6,7, and 8,1990. One motion for continuance was granted because one of appellant’s co-counsel had a scheduling conflict. The trial was rescheduled for June 28, 1990. We note that no subsequent motion for continuance is found in the record. However, in a side bar conference immediately preceding the presentation of the state’s case-in-chief, appellant’s counsel stated, “we have previously, also, of course, moved for a continuance on the grounds that we are not able to find Ms. Bull.” The trial court denied the motion for a continuance finding there was nothing to show either that Grace Bull was a material witness or that there would be any assurance she would be found and produced if the trial were delayed.
Whether or not an appropriate motion for continuance was made, in light of the findings by the court, appellant has failed to show that he was prejudiced. Based on the foregoing, we cannot say the trial court erred in its ruling.
Appellant in a final point asserts a hodgepodge of “other claims.” Among these claims he lists his motions for directed verdict and to reduce the charge, the court’s refusal to excuse a juror for cause, the introduction by the state of an allegedly misleading photograph, and the admission into evi dence of the photographs of Ward’s body. However, he presents no argument or authority regarding these “other claims.” This court does not consider arguments unsupported by convincing argument or authority. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).
Affirmed. | [
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J. Fred Jones, Justice.
In February 1965, John T. Haskins, a practicing attorney, together with his secretary, Barbara Campbell, and one Bill Stamper, formed a corporation named “Arkansas Products & Equipment, Inc.” The authorized capital stock of the corporation was one million shares, having a par value of ten cents (10c) each. Haskins subscribed to ten thousand shares, Stamper subscribed to ten thousand shares, and Campbell subscribed to one share.
Haskins testified that Campbell and Stamper waived their subscriptions when the articles were issued; this is admitted by Campbell but denied by Stamper. In any event, the only stock issued consisted of ten thousand shares issued to Haskins for which, according to his testimony, he paid $1,000.00 in cash and $1,000.00 in service. Haskins went into the wholesale rug. and carpet business as a one-man corporation with himself as attorney and sole owner and with Stamper as general manager.
In April 1966, Haskins entered into a contract with Carlos L. Tucker and his mother, Alice M. Tucker, to sell all of the outstanding stock in the corporation to the Tuckers for $4,765.83 to be paid in equal monthly payments of $150.00 each. Haskins agreed to continue on as corporate attorney on a contingent fee basis of $100.00 per month. A substitute stock certificate for the ten thousand shares was issued to the Tuckers, they took over the assets and assumed the liabilities of the corporation. Among the liabilities assumed were several thousands of dollars in debts personally guaranteed by Haskins. The Tuckers personally assumed this indebtedness by separate guaranty agreements. Apparently when the creditors of the corporation started demanding payment of the accounts guaranteed by the Tuckers, Mr. and Mrs. Tucker refused to pay Haskins or the creditors and attempted to repudiate the entire transaction. Has-kins filed suit in chancery for specific performance and the creditors of the corporation intervened as party plaintiffs on their guaranty agreements. Trial resulted in a decree in favor of Haskins and the intervenors against the Tuckers, and the Tuckers have appealed from that decree.
The entire record consisting of 321 pages is designated by appellants on appeal, but only the oral testi mony at the trial is abstracted in their brief. The record includes 40 pages of supplement in the form of deposition, some eight pages of amended complaint, four pages of answer and counterclaim, two pages of amendment to counterclaim, numerous exhibits including the contracts between the parties and letters of repudiation, a number of interventions and five pages of the decree appealed from, none of which were abstracted by the appellants.
We appreciate the expense involved in preparing records for appeal to this court and we do not like to dismiss appeals without reaching the merits. We are forced to take such action, however, when the appellant fails to abstract such portions of the record that will enable us to understand the questions presented for decision. There are seven individual members of this court who must form separate individual opinions on the merits of each case before us on appeal. This can only be accomplished by separate and independent inquiry into the facts submitted and by separate inquiry into the law applicable to the facts in each case. The litigants, as well as the trial court and practicing attorneys, are entitled to .the separate and independent consideration by each member of this court of the questions presented on appeal, but the volume of work on this court does not permit each of the seven members the time that would be required to gleen the facts and issues in a case on appeal from a single, and usually disorganized, transcript ,of the record from a trial court. That is the reason for multiple copies of briefs on appeal and that is the reason for appellate procedure Buie 9 (d).
The first sentence in Buie 9 (d) is as follows:
“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, facts, documents, and other matters in the record as are necessary to an under standing of all questions presented to this court for decision. ’ ’
Appellants have abstracted none of the record except a part of the testimony. Without examination of the original transcript it is impossible for us to determine, with any degree of confidence, exactly what is involved in this case, and as we have said many times before, we are unable to consider this appeal on its merits since appellants have failed to comply with Rule 9 (d). (Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265; Love v. State Farm Mutual Auto. Ins. Co., 241 Ark. 161, 407 S. W. 2d 118; Allen v. Overturf, 236 Ark. 387, 366 S. W. 2d 189; Routen v. Van Duyse, 240 Ark. 825, 402 S. W. 2d 411; Walden v. Mendleson, 240 Ark. 1019, 403 S. W. 2d 745; Holt v. Moody, 234 Ark. 245, 352 S. W. 2d 87; Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21.)
The decree of the chancellor is affirmed. | [
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J. Fred Jones, Justice.
This appeal is from a judgment in replevin rendered in favor of the appellee (plaintiff in the trial court) by the Craighead Circuit Court, Jonesboro Division, with the judge sitting as a jury.
The appellee, Don F. Chamberlin, is an individual dealer in mobile homes in Poplar Bluff, Missouri. In the course of his business he sells new camper units designed for installation on pick-up trucks. The appellant, Fred Hollis, is a dealer in used mobile homes in Jonesboro, Arkansas, and also buys and sells camper units. He operates his business under its corporate name, “Mobile Homes, Inc.”
About 7:30 p.m. on July 12, 1966, appellee sold to one Joe Crowder a new camper unit for the retail price of $1,757.74. The appellee had purchased the unit from the factory for the wholesale price of $1,538.25. Crowder gave appellee a check on Citizens Bank in Springfield, Missouri, in full payment for the unit. 'Crowder loaded the unit onto a pick-up truck, which was too small to properly accommodate the camper unit, and he left ap-pellee’s place of business without obtaining a bill of sale, but with announced purpose and intention of returning later to pick up the tail gate of the truck which had been removed from the truck in loading the camper unit and which was left at appellee’s place of business. Crowder did not return for the tail gate, but instead, drove the truck with the camper thereon to Jonesboro, Arkansas, and on the following day, July 13, sold the camper unit to the appellants for $500.00. Crowder’s check to appel-lee was dishonored for insufficient funds and appellee instituted suit in replevin against appellants for possession of the camper unit and for damages.
The appellee filed his original complaint and affidavit to obtain delivery August 19, 1966. The complaint and affidavit alleged ownership- and right of possession. Appellant filed a motion to dismiss the complaint because appellee was not the owner of the property in volved; that Crowder purchased the camper with a check which was dishonored by the bank and that appellant was an “innocent purchaser” of the property for $500.00. Appellee then filed an amended complaint also setting out the transaction between appellee and Chowder in some detail, and stating that appellant “was not an innocent or in good faith purchaser for value.”
Appellant filed a motion to strike the amended complaint as untimely after delivery of possession under bond, and this motion to strike contained an alternative plea of general denial and counterclaim for damages.
The trial court made findings and entered judgment as follows:
“(1) The defendant’s Answer, being Section 2 of the Motion to Strike Amended Complaint, was only a general denial and there were no pleadings as to an affirmative defense of the defendant being an innocent purchase:- for value.
“(2) (a) No title passed from plaintiff to Joe Crowder as title was conditional upon payment of the check tendered for the purchase price.
“(3) (b) Defendant was not an innocent purchaser for value.
“The plaintiff should have judgment for possession of the pickup camper which is the basis for this replevin suit, * * *
“IT IS THEREFORE BY THE COURT considered, ordered and adjudged that the plaintiff have possession of the above described pickup camper which is the basis of this replevin suit; that the plaintiff and the surety on his replevin bond be discharged from any and all further liability in connection with the said bond; and that the plaintiff recover from the defendant all his costs herein paid, laid out and expended, for which execution may issue.”
At first glance it would appear that the judgment of the trial court is inconsistent with the court’s findings. The record is not clear what action, if any, was finally taken on the appellants ’ motions to dismiss and to strike, hut the motion to dismiss does set up the affirmative defense of “innocent purchaser for value”; appellee’s amended complaint recognizes this defense as “good faith purchaser for value,” the case was apparently tried and decided on that point, and we conclude that the trial court was correct in the judgment rendered.
The parties seem to agree that this transaction is controlled by the Uniform Commercial Code in Missouri, as between appellee and Crowder, and in Arkansas, as between Crowder and appellant, and that Crowder obtained a voidable title by the delivery of the camper in exchange for the worthless check.
The appellant has cited the correct section of the Uniform Commercial Code applicable to this case. Ark. Stat. Ann. § 85-2-403 (Add. 1961), is as follows:
“A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though
* * # ^ Tbu delivery was in exchange for a check which is later dishonored.”
Under the above statute, this case presented a fact question to the trial court as to whether or not appellant was “a good faith purchaser for value,” and in this court on review, the question is whether or not there was any substantial evidence to support the trial court in finding that the appellant “was not an innocent purchaser for value.” We accept the terms “good faith purchaser for value” and “innocent purchaser or value,” as being synonymous as used in this case, and we conclude that there was substantial evidence to support the trial court’s finding on this point. Arkmo Lumber Co. v. Luckett, 201 Ark. 140, 143 S. W. 2d 1107.
Crowder advised appellants that he wanted to sell the camper because it did not properly fit on his truck and interfered with the safe and proper driving of the truck. “They said: ‘Our truck will not haul the camper’.” Appellant did not know Crowder nor any of the other three people with him when he purchased the camper unit from Crowder, but he did know that the camper unit looked new and was worth at least $1,000.00. Appellant knew that the unit was “purportedly” transported from Springfield, Missouri, when he purchased it, yet the camper unit did not fit the truck it was on, it was not tied down on the pickup and no explanation was made, and apparently no questions were asked, as to why it was not tied down. Crowder had no bill of sale, or other evidence of title from appellee, and apparently appellant asked no questions concerning Crowder’s title. He did, however, require and receive a bill of sale from Crowder.
The case of Gentry v. Alley, 228 Ark. 236, 306 S. W. 2d 695, involved the rightful use of microfilm and the defense of “innocent purchaser for value,” was interposed. In holding that the defendants were not innocent purchasers for value, this court said:
“The record discloses many facts and circumstances which were calculated to have aroused Gentry and Linton’s curiosity as to the history and ownership of the questioned film, and very little inquiry would have disclosed the true facts.”
In the Gentry case we quoted with approval from 77 C. J. S. at page 1092 under the title of Sales, Adequacy of Price, as follows':
“Inadequacy of price, when very great, is of itself evidence to a purchaser of infirmity in his seller’s title, and consideration is to be given it, in connection with other circumstances, in determining whether a buyer is a purchaser without notice.”
We also quoted from C. J. S., page 1099, same volume, as follows:
“The consideration, in order to be effective to bring a transfer within the doctrine of bona fide purchase, should be an adequate valuable consideration, or a fair consideration, but it need not be up to the full price of the goods.”
The trial court was sitting as a jury in this case and there was substantial evidence to support the finding that appellant was not a good faith purchaser of the camper unit for value.
The judgment of the trial court is affirmed.
Byrd, J., dissents. | [
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Lyle Brown, Justice.
This is a Rule 1 case. Appellant, Jack R. Bell, Sr., was convicted in April 1966, of first degree murder. There was no appeal. His present petition for release alleges certain constitutional rights to have been violated. That petition was denied and Bell appeals.
In 1964 Bell, while on parole from the Arkansas penitentiary, went to Florida. A parole violation warrant was issued for his return. He was taken into custody in Florida and waived extradition to Arkansas as a parole violator. At that time Bell was also under suspicion of having committed a murder in Monroe County, Arkansas. However, that suspicion was not revealed to Bell at the time of his apprehension in Florida. Shortly after the return trip to Arkansas began, Bell, without being questioned or coached by the officers, revealed to them that he had committed the homicide but explained it was in self-defense. Because of that admission he was returned to the jail in Monroe County rather than to the penitentiary. Other pertinent facts will be related as we list and discuss the points here raised by appellant.
1. Appellant contends that the officers should not have permitted him to make the oral confession on the return trip without first advising him of his constitutional rights; that the confession made was used against him in the trial of the case. First, we point out that the Miranda warnings are not applicable. Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Bell’s trial was begun before June 13, 1966, the effective date of the Miranda warning requirements. Second, it is undisputed that Bell volunteered the information that he committed a homicide. In the Bule 1 hearing one of the returning officers so testified. Bell corroborated the officer in these words: “I voluntarily told them and it was not a killing, it was justified homicide. ’ ’ His was a spontaneous admission, as was the situation in Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653 (1967).
2. It is next asserted that “the legal rights of the appellant were violated by officers Davidson and Belch-er, when they took him into custody in Florida, well knowing that he would face a murder charge, by not advising him of that fact and his rights as to extradition.”
When Bell waived extradition as a parole violator no murder charge was pending against him. In fact he was not so charged until some four months after his return. At the time of his extradition it is true he was suspected of having committed a homicide but that fact is of no aid to appellant. As respects interstate extraditions (as contrasted with international extraditions) a defendant can be tried for a crime other than that for which he was extradited. Lascelles v. Georgia, 148 U. S. 537, 13 S. Ct. 687 (1892), cited with approval in Frisbie v. Collins, 342 U. S. 519, 72 S. Ct. 509 (1952). See Elmore v. State, 45 Ark. 243 (1885).
3.Appellant was prosecuted under an Information filed by the prosecuting attorney in lieu of a grand jury indictment. The constitutionality of that procedure is
questioned but the point is without merit. Coleman v. State, 242 Ark. 751, 415 S. W. 2d 549 (1967).
4. This point is that “the court erred in not obtaining witnesses for the appellant, who would have, testified 'the deceased had no money, eliminating the motive for the robbery.” At the Bule 1 hearing. Bell testified that at the trial he asked of the court and the sheriff that certain witnesses (whom he does not now name) be brought into court to testify in his behalf and they were not produced. That was all the evidence to support the contention. The trial court found no merit in' the contention. Judge Waggoner presided both at the trial and at the Bule 1 hearing. Mr. Plant was Bell’s court-appointed counsel at both hearings. Had there been any truth-iii-fact in the allegation those officers would have been aware of it. Bell was free to.call either or both as witnesses, along with the sheriff. The failure to produce an available witness who assertedly had knowledge of Bell’s communication creates a presumption that the testimony, if produced, would be unfavorable. Watts v. State, 222 Ark. 427, 261 S. W. 2d 402 (1953).
The proper procedure for obtaining witnesses is to obtain subpoenas. Their issuance is routine and a matter of record. Bell produced no such instruments at the hearing. Since Bell and the deceased traveled through several states immediately prior to the homicide it could well be that most, if not all, of his desired witnesses were beyond the immediate jurisdiction of the court. If Bell in fact requested witnesses, when did he make the request? Was it timely? We cannot tell from the record. The burden was on Bell, not only to show that he requested witnesses, but that it was done in the manner provided by law, that the request was timely made, and that the witnesses were amenable to subpoena. His proof is wholly lacking.
5. Bell’s final contention is that the court erred in not bringing him to trial at an earlier date. Under Ark. Stat. Ann. § 43-1708 (Repl. 1964), he was entitled to he brought to trial before the end of the second term after the charge was filed. When an accused, is incarcerated the State has the burden of showing the failure to bring him to trial within the statutory period was due to lack of time to try the case or was delayed at the request of the prisoner. Beckwith v. State, 238 Ark. 196, 379 S. W. 2d 19 (1964). The record shows he was in court on April 29, 1966, entered a plea of not guilty and agreed to the case being passed. He was thereafter tried on the fourth day of the next term. His plea and agreement to pass were in the second term following the . iling of the charge. The record refutes Bell’s final point.
Affirmed. | [
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George Rose Smith, Justice.
At David Porter’s death on May 18, 1964, he held two promissory notes of $2,500 each, executed by James Carter and payable to David Porter alone. David was survived by his widow, Elizabeth Trainor Porter. The question here is whether the two notes, although payable to Porter alone, were actually owned by the couple as a tenancy by the entirety, owing to the fact that they were given for money that Porter withdrew from a joint bank account and lent to Carter. The probate judge found that there was in fact a tenancy by the entirety in the notes.
The proof is so meager that it may be quickly summarized. In 1960 the Porters had about $14,000 on deposit in a joint account in a West Helena bank. It is fair to say that both spouses had contributed to the account, but there is no way of determining what each one’s contribution was ("assuming that fact to be relevant). In July of that year David lent $5,000 to James Carter, drawing a check upon the joint account for the advancement and receiving in return from Carter the two notes payable to Porter, secured by a real estate mortgage.
Porter died testate almost four years later, in May of 1964. We attach no importance to the fact that his executrix, the appellant, did not inventory the notes as a part of his estate. Porter ?s widow, prior to her own death on March 18, 1966, had made no move toward recapturing the proceeds of the notes, which Carter paid off after Porter’s death. Later on, however, the executors of Mrs. Porter’s estate filed a motion in her husband’s administration proceeding, asking that the proceeds of the notes be declared to be the proprety of Mrs. Porter’s estate. This appeal is from an order granting that relief.
We think the court made a mistake. Only two of our earlier cases need be mentioned. In Union & Mercantile Tr. Co. v. Hudson, 147 Ark. 7, 227 S. W. 1 (1921), the husband, only 12 days before his death, wrongfully took funds belonging to him and his wife and deposited them in a bank account in his name only. We held that his conduct was a fraud upon his widow’s rights and that the funds belongéd to her, as the surviving tenant by the entirety. By contrast, in Dickson v. Jonesboro Tr. Co., 154 Ark. 155, 242 S. W. 57 (1922), we held that where the husband, “with the knowledge and consent of his wife,” withdrew funds from a joint bank account and used them to purchase securities payable to bearer, the tenancy by the entirety was destroyed, so that the wife was not entitled to the securities upon her husband’s death.
The controlling rule ,is so clear that we see no serious problem in the case at bar. Thei;e is no persuasive proof that David Porter defrauded his wife in writing a $5,000 check upon their joint account almost four years before his death. Counsel for the appellees argue with some ingenuity that the transaction was actually a renewal of an earlier mortgage debt payable to both Mr. and Mrs. Porter, but if that were so there was no reason for Porter to advance fresh funds instead of merely renewing the old debt. When we recall that the loan to Carter was made almost four years before Porter’s death, and that his wife had access to the bank’s records of the account, there is hardly even a plausible reason to suppose that Porter secretly defrauded his wife and concealed his wrongdoing until his death. Fraud must be proved.
In reaching our conclusion we have taken into account, as of course we should, the soundness of the precedent that is being laid down for the future. In our present-day society we know that millions of married couples utilize the convenience of a joint bank account, which under our law is a tenancy by the entirety. We also know that most husbands .and wives trust each other, confide in each other,, and conduct themselves with honesty and with honor in the management of then-property. It would be altogether undesirable to permit the rival heirs of the two spouses (who are the real parties in interest here) to reach far back into the past in an effort to raise a bare suspicion that one spouse may have cheated the other in the disposition of funds jointly owned. That sort of posthumous litigation is decidedly to be discouraged.
Reversed.
Fogleman, J., concurs. | [
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Conley Byrd, Justice.
Appellant Robert Y. McClure brings this appeal to determine the authority of appellee William H. McClure, Jr., as trustee of the “W. H. McClure Trust,’’ to place the cotton allotment assigned to lands belonging to the trust in the Cropland Adjustment Program, Pub. L. 89-321, Title VI, § 602, Nov. 3, 1965, 79 Stat. 1206, 7 U.S.C.A. § 1838. For reversal of the trial court’s decree upholding the authority of the trustee to place said lands in the Cropland Adjustment Program,for a period of ten years, appellant relies on the following points:
I. Placing the trust lands under the Cropland Adjustment Program was in violation of the trustee’s mandatory obligation to “obtain a tenant or lessee for all farm lands owned by the trust.”
II. The Trustee had no authority to enter into the Cropland Adjustment Agreements for a period of ten years.
The trust principal consists of some 3,100 acres of land located in the Dai danelle District of Yell County. Appellee is made trustee. He is also a life beneficiary thereof along with appellant, their brother, David B. McClure, and their sister, Janet M. Chivers. The remainder beneficiaries are the natural grandchildren of the set-tlor, who take upon the death of the last surviving life beneficiary. The authority and duties of the trustee are described in the trust agreement as follows:
“The Trustee is charged with the custody, management and protection of all assets of the Trust estate. The Trustee is expressly authorized to lease any real estate owned by the Trust to himself individually or to any other beneficiary of the Trust, provided that any such lease shall not exceed a term of ten years and the rental shall not be less than the prevailing rental value of comparable lands in the surrounding area. The Trustee shall obtain a tenant or lessee for all farm lands owned by the Trust, and shall not without the unanimous consent of Grantor’s living children, use Trust funds to finance the cultivation of or any farming operation upon the lands owned by the Trust.
“The Trustee is authorized, with the consent of Grantor’s living children, to purchase additional real or personal property to be added to and become a part of the principal of the Trust, pledging and using the net income of the Trust to pay the purchase price for such additional assets. The trustee shall not have the authority to sell, exchange, convey, mortgage or hypothecate any real or personal property of the Trust without the unanimous consent of Grantor’s living children.
“The Trustee is authorized to receive and receipt for all rents, property or interests received by the Trust estate; to satisfy liens upon real or personal property of the Trust; to institute or defend legal proceedings for the recovery or protection of assets of the Trust estate; . . . and otherwise, to exercise all duties, rights and authority reasonably incident to the holding of legal title to the Trust assets and discharge of his Trust responsibilities.
“The Trustee shall not be required to give bond and shall not be required to render any accounting to, or be subject to the supervision of, any Court. The Trustee shall not be personally liable for any losses incurred by the Trust for any reason other than fraud.
“No person dealing with the Trustee shall be bound to inquire into the power or authority of the Trustee to do or perform any .acts as Trustee of this Trust. Nor shall any person paying money or other valuable consideration to the Trustee be required or bound to see to the application, reinvestment or disbursement of such money or other consideration paid or delivered to the Trustee.
“The Trustee shall keep proper records and books of account of his administration of the trust, which books and records shall be subject to inspection at all reasonable times by the income beneficiaries of the Trust. ...” (Emphasis supplied.)
The Cropland Adjustment Agreement, after identifying the fields placed in the program and the payment schedule, provides:
“Each undérsigned producer agrees to participate in the Cropland Adjustment Program and to comply with, the terms and conditions herein and th© provisions of the regulations governing the program which are hereby made a part of the agreement. Bach such producer agrees that in accordance with the provisions of the regulations: (1) The designated acreage shown above will be diverted for the agreement period from the production of crops to approved practices and uses as shown in column 23. (2) No crop will be harvested from the designated acreage and such acreage will not be grazed during the agreement period except as provided in the regulations. (3) The acreage permitted to be devoted to the crops diverted from production as shown above shall be zero except as provided in the regulations. (4) The feed grain base and acreage allotments on this farm with respect to which no diversion is shown above and the feed grain base and acreage allotments on any other farm in which the producer has an interest will not be exceeded. (5) The conserving base for the farm will be maintained for the agreement period. Each producer understands that he is jointly and severally responsible with the other producers on the farm for compliance with this agreement and for any refund or forfeiture of payments determined according to the regulations for failure to comply fully with the agreement. All producers entitled to share in the annual adjustment payments under this agreement are shown herein and the division of the annual adjustment payments is fair and equitable. Each undersigned producer applies for the total number of annual adjustment payments due him under this agreement.”
The proof shows that appellee in his individual capacity has been leasing a portion of the lands on a crop rental basis, and that M. Y. Chi vers, Jr., husband of Janet M. Chivers, as a partner in a partnership d/b/a Cotton Town Farm, has been leasing the remainder of the lands.
We are assuming that counsel for appellant are correct in their statement that the lands can be withdrawn© from the Cropland Adjustment Agreement on request of appellee.
There was ample evidence from which the trial court could have found that the Cropland Adjustment Agreement was temporarily more beneficial to the trust from the standpoint of income than a crop rental of the lands, hut for purposes of our decision herein, we do not concern ourselves with the issue.
I
Appellant’s argument that the trustee was without authority to enter into the Agreement is based on two premises: (1) that the trust agreement is mandatory in requiring that “the Trustee shall obtain a tenant or lessee for all farm lands owned by the trust,” and (2) that the placing of lands under a Cropland Adjustment Agreement does not amount to obtaining a “tenant or lessee.” From these two basic premises appellant concludes that the lands cannot he placed in the Cropland Adjustment Program without his consent.
The purpose of the Cropland Adjustment Program is to hold acreage out of production as a supplement to the Commodity Adjustment programs, 1965 U. S. Code Congressional and Administrative, News, 89th Cong. P. 3963. A review of the act, 7 U.S.C.A. § 1838, shows that the landowner, in agreeing to the program, is required to do little more than permit the lands to remain idle with some sort of conserving cover crop for the period of the agreement. The act, 7 U.S.C.A. § 1838 (m), recognizes that lands under lease to a tenant can he placed in the program and contains directions to the Secretary of Agriculture to set up safeguards to protect the tenant’s rights to share in the payments.
We hold that appellant’s contention is not sustained by the trust agreement. While the Cropland Adjustment Agreement is not, strictly speaking, a lease, it accomplishes the purposes of a lease — i. e., it furnishes the landowner an income for a period of years without any appreciable financial risk or necessity for management. The Agreement certainly cannot be classified as a sale, exchange, conveyance, mortgage or hypothecation for which the trust requires the unanimous consent of the settlor’s living children.
Furthermore, when the section on which appellant relies as mandatorily requiring a “tenant or lessee” is read in its entirety, it appears that the dominant purpose of the trust settlor was that the lands, while producing an income, should not be subjected to the risks and hazards of a farming operation. Beading the section in this light, we are unwilling to hold that the trustee was not authorized to enter into the Cropland Adjustment Program.
It should be noted that the trustee, in his individual capacity, and M. Y. Chivers, as tenant of the lands prior to the Cropland Adjustment Agreements, were, under the Cropland Adjustment Program, entitled to a portion of the payments. It appears, however, that they have elected to turn the total payments over to the trust.
II
Nor can we agree with appellant that the trustee exceeded his authority by placing the lands in the program for ten years. There was ample testimony to show that men of prudence, discretion and intelligence in the management of their own affairs were signing up their cotton allotments in the Cropland Adjustment Program for a period of ten years. We think this sufficiently meets the test for a trustee’s conduct as authorized by Ark. Stat. Ann. § 58-302 (Supp. 1965).
Affirmed.
Harris, C. J., dissents. | [
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Paul Ward, Justice.
This litigation involves Pottle Rock’s zoning law as it relates to a nonconforming-usage.
H. W. Roper (appellee) owns a parcel of land at 8704 Oman Road on which he has for many years operated a kindergarten. This property, together with other nearby residential property, was annexed to the City and zoned “A” — one family residence. Roper’s property was accepted as a nonconforming usage.
Later, on September 19, 1966, Roper filed an application with the Board of Adjustment asking for permission to make certain additions to the building in order to better accommodate the children. At the same time four property owners appeared in person, with a petition signed by fourteen property owners, and entered a protest. On October 17, 1966 a hearing was had, and the Board of Adjustment granted Roper’s application on condition that certain specified driveways, parking areas, curbs, gutters, and sidewalks would be provided.
On November 14, 1966 the protestants (appellants) filed a complaint in circuit court against the Board setting out the facts previously stated and alleging, among other things, that to allow the proposed expansion would depreciate the value of their property because of increased traffic, and that it would prevent the free use of their driveways. The prayer was that the action of the Board “be declared illegal”. An answer was filed by the Board, and Roper was allowed to intervene.
A jury was waived and the trial judge, after the introduction of testimony and exhibits, dismissed appellants ’ complaint.
On appeal, appellants rely on two points for a reversal: One, the Board had no “authority to permit the enlargement of the building”, and; Two, no hardship on Roper was shown to justify the action of the Board.
One. We are unable to agree with appellants’ contention that the Board had no “authority” to permit Roper to enlarge the kindergarten building.
Ark. Stat. Ann. § 19-2801 (Repl. 1956) [Building and Zoning Regulations,] in part, reads:
“They (municipal corporations) shall have the power to regulate the erection, construction, reconstruction, alteration and repair of buildings . . . .”
Ark. 'Stat. Ann. § 19-2829 b (Supp. 1965), in pertinent parts, reads:
“The board of zoning adjustment shall have the following functions: Hear requests for variances from the literal provisions of the zoning ordinance in instances where strict enforcement of the zoning ordinance would cause undue hardship due to circumstances unique to the individual property under consideration. . . . The board of zoning adjustment may impose conditions in the granting of a variance to insure compliance and to protect adjacent property. ’ ’
Section 43-22 Board of Adjustment [City Zoning Ordinance] contains the following provisions:
“The board shall have the following powers and it shall be its duty .... Permit the location of the following uses in a district from which they are prohibited by this chapter. . . institutions of an edu cational, religious or philanthropic nature. ...” (Emphasis ours.)
We think it is clear from the above that the Board of Adjustment is vested with the power and “authority”, and perhaps the duty under facts developed, to grant Roper’s application.
To sustain their position, appellants rely on the decision in City of West Helena v. Bockman, 221 Ark. 677, 256 S.W. 2d 40, where appellee (a doctor) was not allowed to expand his clinic located in a residential zoned district. That case, however, is not controlling here because the proposed expansion extended to within eight feet of the property line in violation of a city zoning ordinance. No such issue is involved in this case.
Two. As we understand appellants’ arguments here, the contentions are that the judgment of the trial court is not supported by substantial evidence.
It is contended there is no evidence to show a hardship would have been imposed on Roper if the expansion had been denied. We cannot agree. In the first place no such showing is required under section. 43.-22 quoted previously. Moreover the testimony does show that the addition to the building was required by the Health Department in order for the kindergarten school to continue in operation.
It may be conceded, as was contended by appellants, that the operation of the kindergarten caused a traffic problem in that vicinity, that sometimes the cars blocked the entrances from the street to nearby residences, and that this problem would be aggravated if the enrollment of the school should be increased. However, as previously stated, the Board and the trial court granted Roper’s application on certain conditions. One condition was that additional parking space be provided. The undisputed testimony is that ample parking space has been, or will be, provided and that said conditions will hereafter be more favorable to appellants than they were previously.
In view of what we have pointed out above, we hold the judgment of the trial court is supported by substantial evidence and therefore must be affirmed. | [
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Carleton Harris, Chief Justice.
Marjorie Miller, appellant herein, and Mary Jane Eiegler, appellee, are sisters, and reside in Little Eock. Minnie Wagar, who died in Little Eock, testate, on August 8, 1963, was an aunt of these two sisters. In March, 1957, Mrs. Wagar lived in Long Beach, California. She had been ill, and Mrs. Eiegler and her mother went to California and brought Mrs. Wagar back to this city. The latter lived with appellee, paying $100.00 per month for room and board, until January, 1958, when she went to a nursing home, staying there until her death. A joint checking account was opened with Mrs. Wagar’s funds in the names of Minnie M. Wagar and Mary Jane Eiegler, and a joint safe deposit box was taken in their names, and Mrs. Wagar’s property was placed there. On July 23, 1957, Mrs. Wagar, then 81 years of age, executed her last will and testament, and on July 25, she caused several hundred shares of stocks of the approximate value of $45,000.00 (representing about one-half of stocks owned by Mrs. Wagar) to be transferred to the joint names of Mrs. Eiegler and herself. The new stock certificates reflected the owners of the stock to be “Mrs. Minnie W. Wagar and Mrs. Mary Jane Eiegler, as joint tenants with right of survivorship and not as tenants in common.” It was agreed that the aunt would receive the dividends for the balance of her life. Subsequently, the dividends from these stocks were placed in the joint checking account, and these dividends were reported on the Federal Income Tax returns of Mrs. Wagar. As previously stated, Mrs. Wagar departed this life in August, 1963, and her will was duly admitted to probate in Pulaski County. Mrs. Eiegler, the executrix of the estate, recognized that the money in the joint checking account was a part of the estate, but she claimed absolute ownership of the stock as the survivor of the joint tenancy. Thereupon, Mrs. Miller instituted suit, asserting that the stocks that, were still held in the joint names at date of Mrs. Wagar’s death actually belonged solely to the deceased (and accordingly were a part of her estate), and should be administered as such. Appellant asked for judgment for one-half of the stocks and one-half of the value of any that had been converted. Mrs. Riegler answered, denying that the transfer of the stock was for the convenience of Mrs. Wagar, asserted that it was a gift to Mrs. Riegler, and that Mrs. Miller accordingly had no interest. On trial, the Pulaski Chancery Court (1st Division) held:
“That all of the stock .certificates involved in this suit (including all stock certificates sold by Mary Jane Riegler prior to the institution of this suit and all stock certificates held by Mary Jaiie Riegler at the commencement of this suit which had been reissued in her name individually) were originally issued in the name of the testatrix and Mary Jane Riegler as joint tenants with right of survivorship and not as tenants in common, and all of said stocks are the solé property in fee simple absolute of Mary Jane Riegler, individually, and all dividends received from this stock aré the sole property in fee simple absolute of Mary Jane Riegler, individually.”
From the decree so entered, appellant brings this appeal. For reversal, it is asserted that the stocks involved in this case, which were held in the joint names of Minnie M. Wagar and Mary Jane Riegler at the time of the death of Mrs. Wagar, were the property of Minnie M. Wagar, and the 1957 transfer of the stocks into the joint names of Minnie M. Wagar and Mary Jane Riegler did not constitute or create a true joint tenancy, or gift, or otherwise vest any ownership rights in Mrs. Riegler.
It is first argued that the circumstances surrounding the transfer of the stocks clearly show that there was no intention by the aunt of making a gift to her niece. It is pointed out that, though reissued in the joint names of the two women, the stocks were returned to a joint safe deposit box (which had been acquired in their names on May 27, 1957), and that all other property in the box belonged to Mrs. Wagar. It is likewise pointed out that all of the dividends from all stocks including those held jointly, and those simply in Mrs. Wagar’s name, were placed in the joint bank account at the Worthen Bank. Further, it is mentioned that the dividends from the joint stocks were reported solely on the federal income tax return of the aunt. Mrs. Wagar also received a $65.00 per month pension, which was placed in the joint bank account. No separate monies or funds of Mrs. Riegler were deposited in this account, and all checks written on it were solely for the debts or expenditures of Mrs. Wagar. The checks were all written by appellee, with the exception of five or six of $100.00 each, which were given to Mrs. Riegler, and signed by Mrs. Wagar in payment of room and board. These facts are all argued by appellant as evidence that Mrs. Wagar had no intention, in creating the joint tenancy, f giving an interest in the transferred stock to Mrs. Riegler, but only made the transfer for the purpose of convenience, i. e., to enable Mrs. Riegler to handle financial transactions for the aunt with handiness. Appellant also calls attention to the fact that Mrs. Riegler recognized that funds in the joint bank account (with her aunt) were properly a part of the estate, and such funds were listed as assets. It is also argued that it simply isn’t reasonable that Mrs. Wagar would give this amount of stock to a person (Mrs. Riegler) that she had only seen three or four times in her life before moving to Little Rock. Mention is made of the fact that the deceased was apparently very devoted to her brother, and that it was her principal intent, as evidenced by her will, that he he taken care of the rest of his life; that the will provided that, upon his death, the two daughters should take the residue of the estate. We see little, if any, significance to the fact that Mrs. Wagar held a high regard for her brother, as expressed in her will. The proof reflects that Mr. Miller had an income of oyer $200.00 per month, was older than Mrs. Wagar, and certainly the income, or even the principal, if needed, of the remaining $45,-000.00 worth of stock (still held by 'Mrs. Wagar) would have been considered adequate to take care of his needs. For that matter, however affectionately Mrs. Wagar might have felt toward her brother, she had made no provision for him until the will of July, 1957, was executed. At any rate, appellant’s arguments, heretofore quoted, are all based on surmise and speculation. It is sometimes difficult to ascertain people’s motives, hut it is generally true, even with relatives, that a decedent feels closer to, or likes, one relative more than another. Here, one fact instantly stands out, viz., That Mrs. Wagar lived with Mrs. Riegler for nearly a year, and at the time of making the stock transfer, evidently planned to live with appellee for the balance of her life, this plan being altered because of illness suffered by the aunt following a fall in November of 1957. Not only that, but the very fact that the aunt would pick Mrs. Riegler to handle her business for her (which is not disputed) indicates that she had more confidence in, or closer ties with, appellee than with appellant. Still again, ■ Mrs. Riegler was named Executrix of the Wagar estate, as well as Trustee. Of course, if the transfer was only made for convenience, one immediately wonders why all stocks were not transferred, instead of only half.
Be that as it may, litigation cannot be decided on surmise, or what someone else might have done under similar circumstances. It can only he decided on the evidence presented in court. The testimony heavily preponderates to the effect that the transfer was made at a time when Mrs. Wagar was fully possessed of all her faculties, and understood exactly what was being done. Only three people testified, Mrs. Riegler, Mrs. Miller, and Warren Bass, a certified public accountant of Little Rock, who handled tax matters for Mrs. Wagar.
Mrs. Miller testified that it was her “understanding” from a conversation with her sister that the latter was going to take care of the aunt’s affairs, and the transfer of stock had been made for convenience only; she also stated that her sister said that, though part of the estate was in her (appellee’s) name, everything would be divided “50-50.” Mrs. Riegler denied making these statements, and said that she had informed Mrs. Miller that everything in the estate would be divided “50-50.”
The strongest evidence introduced was that of Mr. Bass, who testified as follows:
Mrs. Wagar was a small lady, quite bright, alert, knowledgeable, and very interesting to talk to. She knew the property she owned, and planned a transfer of stock along with executing the will. She stated that she intended to make her home with Mrs. Riegler the rest of her life; she also said that there were two people she cared for, one being Mrs. Riegler, and the other being the brother.
The witness made a list of the stocks which were to be transferred, such list being offered as an exhibit at the trial. He discussed the matter with Mrs. Wagar several times. Bass was very emphatic in stating that Mrs. Wagar knew exactly what she was doing, and that it was her intention to transfer the $45,000.00 worth of stock to Mrs. Riegler as a joint tenant. We think it was clearly established that the aunt, of her own free will and accord, made the transfer with full knowledge that the stocks transferred would not be a part of her estate, and the survivor of the joint tenancy created would take the full amount.
It is next contended that the requisites of a joint tenancy were not met, and accordingly, the gift must fail. It is first pointed out that there is no statutory provision here involved, such as those which cover savings and loan associations and banks; that accordingly, when a joint tenancy is created, the four “unities” must exist. These are set out in the case of Stewart v. Tucker, 208 Ark. 612, 188 S. W. 2d 125, and are listed, in a quote from 33 C. J. 907, as follows:
“(1) unity of interest (2) unity of title (3) unity of time (4) unity of possession. That is, each of the owners must have one and the same interest, conveyed by the same act or instrument, to vest at one and the same time . . . and each must have the entire possession of every parcel of the property held in joint tenancy as well as of the whole.”
Let it first be said that we have already, to some degree, departed from the rule of. the four unities. In Ebrite v. Brookhyser, 219 Ark. 676, 244 S. W. 2d 625, George Brookhyser conveyed real property, which he owned, from himself to his wife and himself as tenants by the entirety. The trial court held that an estate by the entirety had been created, and Ebrite appealed to this court. There too, Stewart v. Tucker, supra, was principally relied upon, and it was contended that essential requirements to create the estate had not been complied’ with, the wife’s undivided half interest not having been acquired at the same time as the interest retained by her husband; that the husband could not convey to himself, and therefore could have acquired no new title by virtue of his own deed. In upholding the trial court, we stated that there was no reason why parties should not be able to do directly that which they could undoubtedly do indirectly through the device of a strawman. The late Justice J. S. Holt, writing for this court, stated:
“We cannot agree with this reasoning. A complete answer is given in what is now the leading case of In re Klatlz’s Estate, 216 N. Y. 83, 110 N. E. 181. There a majority of the judges, Bartlett, Collin, Hiscock, and Cardozo, agreed that under modern married women’s property acts a husband may create a tenancy by the entirety by a conveyance to himself and his wife. The same argument as to the unity of time was presented there as here, but Judge Collin answered: ‘The husband did not convey to himself, but to a legal unity or entity which was the consolidation of himself and another.’ ”
This decision certainly has not been viewed as unsound for there can be no logic in preventing a spouse from directly giving to his or her marriage partner equal rights in property that is owned, when the same result was permitted by creating the estate through a third party who really held no interest in the property at all.
Likewise, it also appears that the same view is being widely followed with reference to joint tenancy. The landmark case is probably that of Colson v. Baker et al, 87 N. Y. Supp. 238. The issue was stated in the opening line of the opinion, as follows:
“The question to be determined on this motion is whether a person seized in fee of an estate can, by a direct grant, deed the property to another and himself in joint tenancy, instead of tenancy in common, without the intervention of a third party.”
A part of the logic used by the court is interesting. It is pointed out that the unity of time refers to joint parties becoming joint tenants at the same time. As stated:
“* * * When, therefore, he attempts to create for himself and his grantee an estate in joint tenancy out of his fee by a direct deed to the grantee, why does not the joint tenancy arise at the same time and by the same act? I think it does. Of course, each joint' tenant has the same interest by such a deed, and each is in possession of the whole like tenants in common.
“In all references to the ‘four unities’ requisite to create a joint tenancy, I find nothing that prevents their existence or creation by the act of the grantor for himself and another as well as by his act for two other persons.”
In the case of Kleemann v. Sheridan (Ariz.), 256 P. 2d 553, there is a succinct discussion of the issue with which we are here concerned. There, the question was whether a joint tenancy in personal property, had been created by two sisters who, in leasing a safe deposit box, recited in writing that all property theretofore or thereafter placed in the box was the joint property of both and would pass to the survivor. The Arizona Supreme Court discussed the history of joint tenancy, saying:
“Before entering upon a discussion of the points raised by appellant it will perhaps be pertinent to briefly recount the common-law essentials to create a joint tenancy. They are unity of time, unity of title, unity of interest, unity of possession. Such tenancy could not arise by descent or other operation of the law but may arise by grant, devise or contract. Of course the right of survivorship is inherent in the joint tenancy estate and without which joint tenancy does not exist. At first joint tenancy under the common law involved only in terest in land but at an early date it was recognized as applying to personal property as well. At common law a person could not make a conveyance to himself. An attempt to convey land to himself and to another resulted in a conveyance of only one-half of the property to the other and the grantor still held his moiety under his original title, thus destroying two essentials of joint tenancy, unity of time and of title. The result of such attempt was to create a tenancy in common.
“The same rule would seem to logically apply tc personal property and is the rule of law relating to both real and personal property in many of the states of the Union including Maine, Illinois, Wisconsin and Nebraska, but the majority of the state courts have held that the common-law concept of the four unity essentials should give way to the intention of the parties and that a joint tenancy may be created by a conveyance from one to himself and another as joint tenants. California has passed a law making the rule applicable to husband and wife.
“We have apparently aligned ourselves with the majority rule insofar as personal property, the title to which passes by delivery, is concerned.* * *
“Another characteristic of joint tenancy is that it is not testamentary but ‘is a present estate in which both joint tenants are seized in the case of real estate, and possession in ease of personal property, per my et per tout,’ that is, such joint tenant is seized by the half as well as by the whole. The right of survivorship in a joint tenancy therefore does not pass anything from the deceased to the surviving joint tenant. Inasmuch as both cotenants in a joint tenancy are possessors and owners per tout, i. e., of the whole, the title of the first joint tenant who dies merely terminates and the survivor continues to possess and own the whole of the estate as before.”
The court, mentioning that it was holding in line with the majority rule, and that it was the intention of the sisters to create a joint tenancy, held that that estate had been created. Numerous other cases also hold that the intention of the parties is controlling, rather than the common law concept of the four unities.
Here, we think the intention of Mrs. Wagar is established, i. e., to create a joint tenancy, and we can see no more reason to hold to the old premise that the four unities must exist, than the jurisdictions (and numerous others) just quoted, particularly when we have already, as earlier pointed out, to some extent discarded that concept of the law.
However, appellant also relies upon the fact that. Mrs. Wagar and Mrs. Riegler agreed that Mrs. Wagar was to retain — and did retain — the dividends from the stocks jointly transferred. This, says appellant, is fatal to the creation of a joint tenancy for the reason that the two parties did not have equal rights to share in the enjoyment of the property during their lifetime. In connection with this argument, it is also urged that the retaining of the dividends from the transferred stock prevents the transfer from acquiring the status of a gift. We do not agree with these arguments. Joint ten ants may agree between (or among) themselves as to the use made of the property. In 48 C. J. S. under “Joint Tenancy,’’ Section 10, Page 933, we find:
“Joint tenants may contract with each other concerning the use of the common property, as for the exclusive use of the property by one of them, or the division of the income from the property.”
In Tindall et al v. Yeats et al (Ill.), 64 N. E. 2d 903, the question was whether a Mrs. Adams and Mrs. Yeats were joint tenants or tenants in common. The trial court held that they were joint tenants, and this holding was appealed to the Supreme Court. One of the points argued by appellant was that Mrs. Yeats had agreed that Mrs. Adams should have all rents from the land, as well as the possession thereof during the life of Mrs. Adams, and this, said appellant, prevented the estate from being one of joint tenancy. The Illinois Supreme Court disagreed, holding that it was clear that it was the intention of the parties that Mrs. Adams should enjoy the possession of the entire estate; that this was done with the permission and consent of Mrs. Yeats, and that the parties had the right to mate this agreement. And why should this not be permissible? Why should owners of property, real or personal, he prohibited from doing as they desire with that property, so long as the disposition is \iot for an immoral purpose, or against public policy?
Nor do we agree with appellant’s argument with reference to the invalidity of the gift. Appellant states in her reply brief:
“We submit it cannot be that there is any difference in the presumptions applicable to or the basic rules essential to the creation of a gift, whether in the form of outright ownership, joint tenancy, or otherwise, except such as might be inherent in the nature of the particular estate created. * * * If there is a retention of a right to income or principal, or both, inconsistent with the estate ostensibly donated, so that it is not made ‘beyond recall,’ then we submit it is incomplete and ineffectual as between the parties. * * * And, as pointed out in our brief in main, to permit a joint tenancy with retention of all income is nothing more than a void testamentary arrangement. ’ ’
This stock was given to Mrs. Riegler, and placed in the lock box. We have shown, in the citations mentioned, that the joint tenancy was not affected, even though Mrs. Riegler was not to share in the dividends. We here point out that, in the creation of the joint tenancy, Mrs. Riegler did not first become possessed of her interest or rights in the property when Mrs. Wagar died; rather, she acquired a present interest when the estate was created, i. e., her rights as a joint tenant had already vested before her aunt’s death. This fact, of course, silences the armament that a joint tenancy with retention, of income is nothing but a void testamentary arrangement.
Affirmed.
Under Mrs. Wagar’s will, after making some specific bequests, the residue and remainder of the estate was devised to Mrs. Riegler in trust, the income of the principal of the trust estate to be distributed in convenient installments to her brother, George Henry Miller, the father of appellant and appellee, during his lifetime. The trustee was .also aüthorized to use any part of the principal as might be required to properly' take care of the brother. The will further provided that, upon the death of George Henry Miller, or upon the death of Mrs. Wagar (if the brother died before the testatrix), the trust estate was to be divided equally between Mrs. Riegler and Marjorie Nidolini (Miller), or in event of the death of either niece, that share to the child or children of the deceased relative.
There was also a prayer in the complaint for certain items of personal property to which Mrs. Miller made claim, but the Chancellor’s adverse decision on this point has not been appealed.
The record indicates that this was about the same number of times that Mrs. Miller had seen her aunt.
It is also argued, though not forcefully, that Mrs. Wagar likewise retained an interest in the principal. This contention is based upon some answers given on cross-examination by Mrs. Riegler and Mr. Bass, but we think the evidence falls far short of establishing any retention by Mrs. Wagar of an interest in the principal. Actually, the testimony is confusing as to whether the dividends were to be, in all events, retained by Mrs. Wagar, or would only be retained if they were needed for her support. The legal question would be the same, but we treat the matter as though the withholding of the dividends was definite.
Incidentally, Illinois is one of the states that still holds that the four unities must be observed in creating a joint tenancy. Mrs. Adams was the original owner of the property, and a conveyance from a third party was used in effecting the joint tenancy. At the time of the creation of the joint tenancy, Mrs. Adams and Mrs. Yeats entered into the following agreement:
“Whereas the First Party has this day and date vested title in the parties hereto as joint tenants in the Marshall County, Illinois, farm owned by the First Party, all evidenced by certain deeds executed by the First Party and Martin A. Adams, her husband, and Walter C. Overbeck, all of the within date;
“Now Therefore, in consideration of having vested title of said real estate as aforesaid, The Second Party herein, in consideration thereof, agrees with the First Party that said First Party shall have all the rentals from said real estate and the possession thereof during the term of her natural life, with power and authority to insure the buildings thereon, make repairs and do such other things thereon as she could or would do were she the sole and exclusive owner thereof. This Agreement shall not, however, in any manner affect the joint tenancy of said real estate nor the legal incidents accompanying same.
“Dated this 31st day of May, A. D. 1939.
“Grace M. Adams, (Seal)
“Margaret Isabelle Yeats, (Seal)”
See, inter alia, Greenwood v. Commissioner of Internal Revenue, 9 Cir., 134 F. 2d 915; Switzer v. Pratt, 237 Iowa 788, 23 N. W. 2d 837; Conlee v. Conlee, 222 Iowa 561, 269 N. W. 259; Creek v. Union National Bank in Kansas City (Mo.), 266 S. W. 2d 737. These cases cite numerous others to the same effect. | [
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Lyle Brown, Justice.
This action originated when appellant Armstrong filed petition in the Cross, County-Court under the provisions of Ark. Stat. Ann. § 76-110 (Repl. 1957); there he sought to establish a private road which would lead from the county road across appellee Cook’s lands and to the Armstrong property. The county court granted the petition. On appeal to circuit court by Cook, the findings of the county court were vacated. Those findings were based on omissions which we shall later describe. It is appellant Armstrong’s contention that the county court’s order which awarded him an outlet to the county road was justified.
Appellant Armstrong and appellee Cook own adjoining farm lands. A public road runs through the Cook lands. Armstrong has no immediate access to a public road. For a number of years he has gained access to his acreage by crossing, with permission, the woodlands of his neighbor. The woodlands were cleared and planted in an orchard and Cook no longer desired to make passageway available.
The county court failed to follow the statutory requirements in a number of respects, all of which will not be enumerated. We do point out that the written report of the appraisers does not sufficiently describe the land through which the road would pass; nor does it calculate the value of the strip of land which would he appropriated for the road. No survey was incorporated in the commissioners’ report.
Here is the only instrument of the commissioners:
“We, the undersigned Commissioners, appointed to view the lands in Section 31, Township 7 North, Range 4 East, in Cross County, Arkansas, to determine the feasibility of laying off a private road to reach the lands belonging to Gr. L. Armstrong, do make this report.
“We find that Gr. L. Armstrong needs a road to his property. We also find that there is no other feasible route except an old road now in existence.
“We recommend that a 20 foot road be built at the same location where the old road is now. There will he no damage to the Cook Farm in the construction of this road.”
The order entered by the county court adopted the same description as is contained in the commissioners’ report. If that report, along with the order of the county court, were recorded, it is apparent that the description is so vague that the road could not be located from an examination of the records. It is also noted that the county court order makes no finding with respect to damages. Section 76-110 requires a finding as to whether damages are sustained, “which damages shall include the value of the land of each owner sought to be appropriated. ’ ’
The recited omissions were sufficient to invalidate the county court proceedings. However, the circuit court erred in granting Cook’s prayer for dismissal. That court should have retained jurisdiction and tried the case de novo. Ark. Stat. Ann. § 27-2006—7 (Repl. 1962). See Garland County Board of Election Commissioners v. Ennis, 227 Ark. 880, 302 S. W. 2d 76 (1957).
Reversed and remanded. | [
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John A. Fogleman, Justice.
The principal question in this case requires the determination of priority between a construction money mortgage on the one hand and several liens of materialmen, suppliers and mechanics on the other.
In 1964 Morehead Properties, Inc., (hereinafter called Morehead) having in mind construction of a large complex of “garden apartments,” acquired certain lands in Hot Springs. Morehead had previously dealt with appellant for materials, supplies and financing in connection with similar construction in Texas. Appellant arranged for both permanent and construction financing for Morehead on the project in question. He accomplished this by guaranteeing the $400,000.00 construction loan by the Exchange National Bank of Dallas and acquiring a commitment for permanent financing by John Hancock Life Insurance Company when construction was completed and the apartments occupied. On April 14, 1965, Morehead executed a proper and valid mortgage on the property to the bank as security for the construction loan. It was not filed for record until April 21, 1965, at 11:21 a.m. It contained a recital that the money was to be advanced to Morehead from time to time. Actually, the entire amount of the loan was disbursed pursuant to preliminary agreement, however, by advances by the bank to appellant from time to time. He, in turn, made advances to Morehead for the payment of various costs incident to the project, with the proposed application of the advances usually specified by Morehead. The latter commenced construction on the project, making contracts with appellees for labor and materials. Morehead became insolvent before the buildings were completed or appellees paid. Appellant then paid the Morehead note upon demand of the bank and took an assignment of the note and mortgage. He also took possession of the apartment complex. Appellees then filed suits to enforce their liens and appellant filed a suit for foreclosure of the construction money mortgage. The suits were consolidated for trial and the chancellor found that the liens of appellees were prior to the lien of the construction money mortgage. The principal contention of appellant is that the trial court erred in holding that the appellees’ liens had priority over his mortgage.
The court’s findings in this respect were based upon the activities of appellee Carroll Pyron, d/b/a Carroll Pyron Construction Company. Pyron was a heavy construction contractor, operating bulldozers and similar machinery. He was employed in October 1964 to' clear the land of brush, debris and trees in order for a topographical survey of the premises to be made. This assignment was completed, Pyron billed Morehead and was fully paid. While no agreement was reached, Pyron was told at the time he did this work that Morehead would like to have him do the excavation for the concrete work. In the early part of April 1965 Morehead contracted with Pyron for the leveling of the land for a proposed apartment complex to consist of more than one building. After the clearing in 1964, several large trees and two old houses remained on the site, but these latter had been removed when Pyron first went there in 1965. The old foundations remained, however, and the land itself was of an uneven elevation. Pyron was furnished with a set of plans and building elevations were discussed. An agreement was made for Pyron to clear the property of remaining debris and to grade elevations for the building sites with compensation to be paid on an hourly basis. The latter undertaking was to be accomplished by moving dirt from one place to another on the site so as to bring the sites for the buildings to elevations satisfactory for the laying of concrete slab foundations.
On the morning of April 19th Pyron went to the building site with an employee named Terry to commence work. Pyron spent about 45 minutes establishing cut and fill elevations with a transit and an elevation rod. Terry had brought a large bulldozer with which he started moving the foundations of the old houses. That day he worked approximately six hours, during which he removed the foundations of the old buildings and commenced the leveling operation. The condition of the soil after this work would have revealed that it had been “bulldozed over.” The machine remained on the job site and was actually not removed therefrom for at least one week. An employee named Taylor went to the property at 7 a.m. on April 21st and spent about thirty minutes with Pyron, becoming oriented' to the elevations. He then worked for an hour and a half, using the same machine. Nothing else was done on the apartment site before the filing of the mortgage. Ultimately Pyron completed the leveling work. Shortly prior to May 13th he dug the footings for the concrete foundations. This was the first actual work in connection with building the apartments, other than the bulldozer work.
Appellees contend that the work done by Pyron establishes the priority of all their liens, relying upon Ark. Stat. Ann. § 51-607 (1947). They argue that this work constituted “commencement of the buildings or improvements” in the sense of that section of the statute, so that all such liens dated from this “commencement” under the rule announced in Planters Lumber Co. v. Jack Collier East Co., 234 Ark. 1091, 356 S. W. 2d 631. Appellees have virtually abandoned their original contention that the work in October 1964 constituted a commencement from which the priority would date, but rely on the work done on April 19th and 21st. We had occasion to determine whether there was a “commencement” of a building sufficient to establish lien priority recently in Mark’s Sheet Metal, Inc. v. Republic Mortgage Co., 242 Ark. 475, 414 S. W. 2d 106. There we held that the work done must be such as to make it obvious that improvements, on the property were being commenced or were underway. We said that the clause in question means some visible or manifest action on the premises to be improved, making it apparent that the building is going up or other improvement is to be made. Reference was made in that opinion to Rupp, Trustees v. Earl H. Cline & Sons, 230 Md. 573, 188 A. 2d 146, 1 ALR 3d 815. In that case, the Maryland Supreme Court held that neither the removal of soil from a part of a development site intended for the erection of an apartment building to another part of the site, intended for the construction of cottages, nor the grading and leveling of the apartment site constituted such “ commencement’ ’ under a similar statute as to give a mechanic’s lien preference over a subsequently recorded mortgage. They relied on their previous decisions holding that commencement of the building is “the first work on the ground which is made the foundation of the building and forms a part of the work suitable and necessary for its construction” (Brooks v. Lester, 36 Md. 65) and that driving of stakes and digging away of soil to level the ground prior to beginning construction were not sufficient (Kelly v. Rosenstock, 45 Md. 389). They had said in the earlier cases that the work must be such that everyone can readily see and recognize it as commencement of a building. This rule is followed by a great majority of the cases in which the question has arisen in states with statutes similar to ours.. It is generally held that the mere preparation of the land for the construction is not sufficient. See Annot., 1 ALR 3d 822.
Even though not followed as an unqualified rule, actual and visible improvement to establish priority has been held in many of these cases not to begin until such work as excavation for a basement or foundation has begun. National Lumber Co. v. Farmer & Son, Inc., 251 Minn. 100, 87 N. W. 2d 32; North Shaker Boulevard Co. v. Harriman Nat’l Bank, 22 Ohio App. 487, 153 N. E. 909; Hagenman v. Fink, 19 Pa. Co. Ct. R. 660; Roy Bldg. & Loan Ass’n v. King, 17 Pa. D & C 83, 22 Del. Co. 297; Davis-Wellcome Mtge. Co. v. Long-Bell Lbr. Co., 184 Kan. 202, 336 P. 2d 463; George M. Newhall Engineering Co. v. Egolf, 185 F. 481 (3d Cir.). It has also been held that the labor or materials must be such as could afterward become, or be considered, a component part of the structure. Conn. General Life Ins. Co. v. Birzer Bldg. Co., 61 Ohio L. Abs. 477, 101 N. E. 2d 408; Sheridan, Inc. v. Palchanis, 172 So. 2d 872 (Fla. 1965). At any rate, the weight of authority seems to be that clearing, grading and filling of the land do not constitute the commencement of a building for the purpose of establishing priorities of mechanics’ and materialmen’s liens. See, Kiene v. Hodge, 90 Iowa 212, 57 N. W. 717; Central Trust Co. v. Cameron Iron & Coal Co., 47 F. 136; New Hampshire Savings Bank v. Varner, 216 F. 721 (8th Cir.); aff’d 240 U. S. 617, 36 S. Ct. 409, 60 L. Ed. 828; Maule Industries, Inc. v. Gaines Const. Co., 157 So. 2d 835 (Fla. 1963).
We hold that the work done in this case by Pyron was not such as to be visible or manifest action on the premises, making it apparent that a building or improvement was being commenced or underway. It was at most a preparatory operation. '
Appellees contend, however, that there is no evidence that the bank or appellant made any visual inspection of the premises before the construction money mortgage was recorded so they could not have relied upon what they saw. This is analogous to. an argument that one who does not examine the public records of mortgages would not be entitled to assert the priority of a mortgage taken by him and filed for record over a subsequently filed mortgage of which he had no notice otherwise. The question is not whether an inspection was made, it is rather what an inspection would have disclosed.
Appellees also contend that removal of the old foundation was sufficient to establish the priority, relying upon Pratt v. Nakdimen, 99 Ark. 293, 138 S. W. 974. In that case this court only held that the trial court correctly included the amount paid by a defaulting contractor for the removal of an old building and its foundation from the job site in the total sum of liens against the building for the purpose of fixing the percentage to be distributed upon the lienable claims asserted against the building, after default and completion of the building by the owner. No question of priorities was involved. In that case the court said that this cost was for labor that went into the construction of the new building because it was impossible to build the new without the removal of the old. It must be noted that the contract with the original contractor called for the removal of a three-stóry building and the construction of a six-story structure. Even if it can be said that the cost of removing the old foundations was a lienable claim, this does not mean that this step establishes the priority of the lien. The statute provides for a lien for work upon a building or improvement [Ark. Stat. Ann. § 51-601 (1947)] but the priority is determined by the “commencement” (§ 51-607). The mere fwt that the work was the proper subject of a lien cannot establish priority when it does not give notice of the commencement. The removal of the old foundations would no more give notice that a new building was to be erected than the wrecking and removal of the old building did, yet the lien claimants have not sought to use that date as the date of commencement. It is to be noted that priority was denied by the court in the Rupp case, even though Maryland’s lien statute gave a lien for grading, filling and landscaping. Maryland Code (1957) Art. 63, § 1. The point is further illustrated by considering that the fabrication of fittings for the heating and air conditioning system was a proper item for a lien when the system was put in the building involved in Mark’s Sheet Metal v. Republic Mortgage Co., 242 Ark. 475, 414 S. W. 2d 106, but this step furnished no notice whatever of the commencement of the building.
We cannot say that appellant is entitled to priority for the entire amount of the judgment awarded him, however. Appellees question his entitlement to priority for the cost of the land, brokerage fees paid to Clark, a stand-by mortgage fee, title insurance, taxes and interest. The testimony showed that of the total advanced, the sum of $57,780.00 was for the purchase price of the land and was advanced by Clark to Morehead. This item may properly be considered as secured by appellant’s prior lien, as the purpose of the loan and not the use of the proceeds is the determining factor. Sebastian Build ing & Loan Assn. v. Minten, 181 Ark. 700, 27 S. W. 2d 1011. The present case is distinguishable from Planters Lbr. Co. v. Wilson, 241 Ark. 1005, 413 S. W. 2d 55, in that there is no evidence here that either Clark or the Exchange Bank ever represented in any way that the purchase price of the lot had been paid, nor did either of them receive or retain any part of the purchase price, as did the construction money lender in the case last cited. However, under the holding of the Wilson case, appellant would not be entitled to priority for his brokerage fee of $4,000.00 or the stand-by mortgage fee of $8,000.00 paid to the insurance company which was to make the permanent loan after completion and occupancy of the building.
Appellees also question the disbursements for interest, title insurance and taxes. We need not consider the effect of control of loan disbursements (as we did in the Wilson case) on the general rule that loan purpose, not use, is the key priority factor because the question of lien priority on the remaining items is not dependent thereon. The item of taxes is a proper item for priority as it was paid to protect the property from what was or would be a prior lien. Ashdown Hardware Co. v. Hughes, 223 Ark. 541, 267 S. W. 2d 294. We see no reason why the charge for title insurance — an outlay for a necessary prerequisite for temporary financing —should not he a proper item. Interest would not he allowable on those sums deducted or paid for brokerage and stand-by mortgage fees (Planters Lbr. Co. v. Wilson, supra) but this appears to have been included in the judgment in favor of appellant and included in the court’s decree.
We find no reason why payment to Clark for materials and supplies furnished by him or companies in which he had an interest should not be allowed as items properly disbursed under the construction loan.
Many other interesting questions are presented on the appeal, as well as on the cross-appeal of General Electric Company which seeks to establish a lien for electric ranges furnished for the apartments. In view of our holding, these questions have become moot. By stipulation of the parties, a commissioner’s sale of the property was had pending this appeal. The proceeds of that sale are to be distributed after final determination of this case. At that sale appellant became the purchaser for $340,000.00. He is entitled to priority for an amount in excess of this sum, so there will be nothing for distribution to the lien claimants in any event.
Reversed and remanded for entry of a decree pursuant to this opinion, an appropriate order on distribution of the proceeds of sale, and a release of supersedeas bond posted by appellant pursuant to stipulation of the parties. | [
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Smith, J.
The Railway Company sued Beidler in ejectment for eighty acres of land. He claimed to have bought of the Company fifty-three 75-100 acres, parcel of the tract described in the complaint, paying one-fourth in cash and giving his notes for the deferred payments. He made his answer a cross-bill, tendered the residue of the purchase money and demanded a specific performance of the agreement. The cause was transferred to equity and for defenses the Company set up the Statute of Frauds and insisted that the contract upon which Beidler relied was obtained by means of false and fraudulent representations, and that as soon as the deception which had been practiced was discovered, it had offered to refund Beidler’s money and had destroyed his notes. The decree was that the Company should execute to Beidler a good and sufficient deed with covenants of warranty, for the premises mentioned in the cross-bill, upon the completion of his payments.
The following instruments were put in evidence by Beidler:
“St. Louis, Iron Mountain & Southern Railway Co. ^ “Land Department. > “Little Rock, Ark., Dec. 26, 1877. J
“Contract No. 2,444.
“ Received of Henry M. Beidler, of Texarkana, Miller “ County, Ark., the sum of two hundred and one ®060' dollars, on “ account of purchase money of land of this company, as ex- “ pressed in his contract, numbered as above.
“ Thomas Essex,
“$201.56. Land Commissioner.
“ This receipt is given to be held by the party until the contract be transmitted to New York for signature by the Trus- “ tees, and received back at this office.”
“St. Louis, Iron Mountain & Southern Railway,"] “ Arkansas Division, | “ Formerly Cairo & Fulton Railroad, ¡> “ Land Department. “Little Rock, Ark., December 26, 1877.^
“This is to certify, that H. M. Beidler, of Texarkana, Miller “ county, Arkansas, has purchased from St. Louis, Iron Moun- “ tain & Southern Railway, the following tracts of land:
“All of N. E. of S. E., Sec. 30, T. 15 S., R. 28 W., except “ 5 acres in S. W. corner of said forty, reserved for company’s “ steam pump, ’ containing an area of 35 acres; also that part “ of the N. W. of S. E., Sec. 30, T. 15 S., R. 28 W., outside of “ lands reserved for company purposes, containing an area of “18 acres, as set forth in contract between said Beidler and “ St. L., I. M. & So. Ry. Co.
“ Number 2,444.
“Thomas Essex, Land Commissioner.”
These, memoranda are insufficient of themselves to satisfy the requirements of the Statute. They do not show the terms and conditions of the sale, the price to be paid' and the time within which payment is to be made. They refer, however, to a certain contract numbered 2,444, which was produced by the Company and which proved to be nothing more than a printed form of articles of agreement in use by the Company for sales of land, signed by Beidler alone, and with none of the blanks filled; so that it amounts to no more than a sheet of blank paper with Beidler’s signature at the end. But attached to this blank form was the following memorandum in pencil:
“ Sale suspended.
“ H. M. Beidler, Texarkana, Ark. Con. No. 2,444. Part of N. 1-2 of S. E., Sec. 30-15-28; 53.75$ at 15, outside of reservation, Miller county; 1-4 cash, balance in 1, 2 and 3 years. Reserve perpetual right-of-way for pipe from pump to tank.”
And the company also produced and filed with said blank form the following, which we take to be an excerpt from its book of sales:
ST. LOUIS, IRON MOUNTAIN & SOUTHERN R’Y.
The mutual relation of these several writings appears on their face. Manifestly, all of them were made in the course of one and the same transaction. They will be read together, therefore, and if, with the aid of the light thrown by each upon the other, a court can, without resorting to extrinsic evidence, ascertain and identify the parties to the. contract, the subject matter and the terms and conditions of the sale, specific execution will be decreed. It matters not what may have been the immediate purpose for which some of the writings may have been prepared, or that one of them may be unsigned. All that the statute requires is written evidence from which the whole contract can be made out. Pomeroy on Specific Performance, Secs. 82-4; Browne on the Statute of Frauds, Secs. 346, 349; 1 Reed, do, Secs. 340, 351; 1 Gr. Ev., Sec. 268; Allen v. Bennett, 3 Taunton, 168; Johnson v. Dorgson, 2 M. & W., 653; Sarl v. Bourdillon, 1 C. B. N. S., 188, (87 E. C. L. R.); Newell v. Radford, L. R., 3 C., p. 52; Long v. Millan, 4 C. P. Div., 450; S. C. 30, Moak Eng. Rep., 659; Barry v. Coombe, 1 Peters, 640; Salmon Fall Manf’g Co. v. Goddard, 14 How, 446; Beckwith v. Talbot, 95 U. S., 289; Raubitschek v. Black, 80 N. Y., 478.
^ *s> however, urged that the lands are not sufficiently described.' The description of the first tract is complete in itself. It calls for a block of forty acres, described according to the legal subdivisions upon the public surveys, except five acres in the southwest corner. The exception means five acres laid off in a square. Walsh v. Ringen, 2 Hammond, (Ohio), 328; S. C. 19 Am. Dec., 555; Cunningham’s Lessee v. Harper, Wright (Ohio), 366; Hay's Lessee v. Storrs, Ib. 711; Baybee v. Hageman, 66 Ill., 519.
The description of the other tract presents the case of a latent ambiguity which is capable of being removed by parol proof. The land intended was fully identified, the sale having been made with reference to a previous survey and plat, in which the boundaries were established. Cate v. Stewart, 28 Ark., 146; Swayne v. Vance, Ib., 282; Dorr v. School District, 40 Id., 237.
Upon the other branch of the case—the alleged fraud of Beidler in procuring this sale—the evidence tended to show that he saw the president of the road, at Texarkana, in November, 1877, told him that he wished to buy this land, which lay near the Company’s depot at Texarkana, on the south side of the track. The president inquired of an official connected with the operating department ol the railway service, whether he had sent up the maps showing what lands the Company desired to reserve from sale at that point; and receiving an answer in the affirmative, intimated that the land was in the market and referred Beidler to the land commissioner.
Shortly afterwards Beidler came to Little Rock and in company with a friend called at the commissioner’s office and applied to purchase the land. The commissioner says he explained to Beidler that he could not sell any part of this tract until the operating department had fixed the amount of the reservation that was required for railroad purposes. But Beidler and his companion swore that the commissioner told Beidler he could have the land; that he did not know, however, how many acres it contained, and a survey would be necessary; and .that the parties agreed upon one Hogane to survey it; Beidler returned to Texarkana, and upon inquiry found that Hogane had already made a survey, and from him he procured a plat, which showed a reservation of only fifty feet from the main track south for right of way.
In December following Beidler met the commissioner in St. Louis and exhibited the plat. The commissioner examined it and expressed his opinion that a mere right of way through the land was not a sufficient reservation. He asked if the division superintendent was cognizant of the making of the map, and was informed that he had been present when the lines were run. The commissioner finally said he would be satisfied if the division superintendent would certify in writing to the correctness of the lines as shown on the plat.
Beidler, not having a personal acquaintance with the division superintendent, requested Hogane, the surveyor, to lay the map before him and have him examine it, and if found correct, to.so certify. This was done, and the division superintendent indorsed on the map, over his official signature, “This is correct.”
On the 19th of December, Beidler called at the commissioner’s office in Little Rock, for the purpose of making the purchase, but not finding him in, left with his chief clerk the plat certified by the division superintendent to be correct, and $200 in money to be applied on the proposed purchase when the terms were settled. Under date of December 24th, the commissioner writes Beidler that he has the certified plat; that he considered the land worth $16 per acre, and wishes to hear from him soon. In response to this, Beidler came in person, and on the 26th of December the treaty of purchase was concluded.
On the same day, but after the writings had been drawn ánd delivered, the commissioner and the'division superintendent discussed the matter and came to the conclusion that too much of the land had been sold off, and that the Company might hereafter need some of it to accommodate future expansions of its business. Prompt measures of retraction were taken, but the matter had proceeded too far to allow of any jus deliberandi or locus poenitentice.
In all this we see nothing that comes up to' the legal idea of fraud. No fiduciary relation existed between the parties, and the means of information were equally accessible to both. All that can be said is that Beidler seems to have taken advantage of the want of understanding between the land department and the operating department of the Railway. But we are not sat isfied that he actively and knowingly contributed to produce that misunderstanding. His conduct in procuring the certification of the map is not irreconcilable with good faith and fair dealing. It is true the division superintendent was not aware at the time, of the purpose for which his signature was wanted, nor even that a negotiation for purchase was pending. But we are not prepared to say that it was Beidler’s duty to inform him. He had never undertaken to do this. And the land commissioner would not have been misled if he had made due inquiry on the subject.
There is some slight evidence in the record that the land was subject to*a deed of trust made by the Company, the legal title being outstanding in the Union Trust Company, of New York, and that it was customary to send forward these contracts to have the trustee join in the sales. If the land is mortgaged, still the Company has an equity of redemption which it may sell and convey. And if Beidler chooses to accept the land in that condition, certainly the Company has no cause to complain.
Let the decree be affirmed. | [
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Eakin, J.
Appellant, Mrs. Nowland, recovered at law, a j udgment against Lanagan, for a debt originally contracted under the constitution of 1868. Subsequently Lanagan was adjudged a bankrupt; and afterwards, under the constitution of 1874, made a new promise to pay the debt; upon which promise this judgment was recovered. Execution issued, and he filed a schedule of property claimed as' exempt under the constitution and laws existing when the debt was originally contracted. Supersedeas issued from the clerk, and Mrs. Now-land moved the court to quash it, upon the ground that the exemptions were governed by the law in force when the new promise was made. The court refused to quash, and she appeals.
The question is, does the promise of a bankrupt to pay a debt, from which he has been discharged, renew the old obligation with all its incidents and consequences ? or is it to be considered as a distinct original promise, based on the moral obligation, but attended with- the incidents and consequences which would appertain to any other promise, about a new matter ? In other words, what is the contract upon which the judgment is based?
In case of the statute of limitations the current of authority is, that a debt thereby barred as to time, but taken out of the operation of the statute by a new promise, rests upon its original basis, preserving its original nature and consequences. This is upon the ground that the statute itself does not, in fixing the limitation, mean to determine thereby that the debt has been actually discharged or was invalid at first, but simply, for the sake of peace and for security against perjury or loss of evidence, absolves the defendant from all proof as to the matter. It was for sometime the doctrine in England that an acknowledgment of the debt, even with a repudiation of any intention to pay it, took the case out of the statute, but-the courts there have receded from this laxity, and now hold that there must be a new promise to pay, either explicitly made or to be inferred from an unequivocal acknowledgment of the justice of the debt, unaccompanied with any expression, or indication of an intention to rely upon the statute as a defense. See Angell on Lim., Sec. 134, et seq. This is the most approved American doctrine also. (Ubi supra) But this “ new promise,” as it is called, is not original. It is a promise to do, either absolutely or conditionally, what the party was morally bound'to do under the old contract. For without such reference to raise the moral obligation, the new promise would be without consideration. It cannot, therefore, be independent. It connects back with and revives the old contract.
Debts, discharged in bankruptcy, stand in some respects upon a different footing. The old debt which might have beén proved in bankruptcy is not simply outlawed of remedy, but absolutely discharged as effectually as if paid. We do not see, however, that this affords any grounds for a distinction as to the effect of a new promise. None such has been adverted to in the few cases which have come before this court touching this point. A new promise after bankruptcy has been looked upon as reviving the old debt with all its character. There has, indeed, been no occasion to rule expressly upon the distinction, but it has been taken for granted that bankrupt debts are revived by a new promise.
Our present constitution provides (Art. IX, Sec. 9,) that “the exemptions contained in the constitution of 1868 shall apply to all debts contracted since the adoption thereof and prior to the adoption of this constitution.”
The debt in this case was contracted during that period, although revived by the new promise afterwards. We do not think the court erred in refusing to quash the supersedeas issued in accordance with the exemptions allowed under the constitution of 1868.
Affirm. | [
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Smith, . J.
The indictment was in these words:
“ The grand jurors of the State of Arkansas, duly impaneled, sworn, and charged to inquire, in and for the county of Nevada, in the State of Arkansas, upon their oaths present that Adam Frederick, late of said county, on the 3d of May, in the year of our Lord one thousand eight hundred and eighty-five, with force and arms, in the county aforesaid, said day being Sunday and the Christian Sabbath, did then and there unlawfully keep open a barber shop, and labor therein by per forming the usual services of a barber, of shaving, hair-cutting, hair-dressing and shampooing, contrary to the form of the statute, and against the peace and dignity of the State of Arkansas.”
A demurrer was sustained to this indictment, the following grounds being«specified:
“ist. Because said indictment is uncertain, multifarious and insufficient, in that in one count thereof two separate and distinct offenses are charged, viz: (i). Unlawfully keeping open a barber shop, and (2) unlawfully laboring on the Christian Sabbath, commonly called Sunday.
“ 2d. Because the said indictment, as to the charge of unlawfully laboring on Sunday, is wholly insufficient and uncertain, and does not state facts sufficient to constitute any offense, in that the labor alleged to have been performed by defendant on Sunday, is not averred to have been other than customary household duties, or labor of necessity and charity.
“ 3d. Because the said indictment, as to the charge of unlawfully keeping open a barber shop, does not state facts sufficient to describe any offense known to the laws of the State of Arkansas.”
The mere keeping open of a barber shop on Sunday, without performing any labor therein, is not a violation of the laws against Sabbath-breaking. Sec. 1887 of Mansfield's Digest, and the Amendatory Act of March 2, 1885, are confined to the keeping open of stores and dram shops. Therefore the indictment charges but a single offense—laboring on the Sabbath— and the allegation that the defendant kept his shop open, is matter of inducement and descriptive of the manner of laboring.
The indictment needed not to allege that it was not a work of necessity or charity. The courts will take judicial notice that the shaving of his customers by a barber is a worldly labor, or work done by him in the course of his ordinary calling, and not within the exceptions of the statute. Phillips v. Innes, 4 Clark & Finnelly, H. L., 233.
Judgment reversed and cause remanded, with directions to overrule the demurrer and require the defendant to plead. | [
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Smith, J.
This bill was filed by the beneficiary in a deed of trust against the maker, the trustee, and certain others who had possessed themselves of distinct portions of the trust property. It was alleged that the deed, which covered a crop of corn and cotton to be raised in the year 1883, and which was designed to secure a pre-existing debt, as well as future, advances, had been duly acknowledged and recorded; and that the debtor, in September, 1883, had executed an instrument of writing, by which he surrendered said crops to the trustee, the proceeds to be applied to the satisfaction of said indebtedness; but that the trustee had proved unfaithful to the confidence reposed in him, and had applied a part of the proceeds of such crops to the payment of an individual debt due himself from the creator of the trust, and by his neglect and connivance had suffered other portions to be seized and misappropriated by persons whose claims upon it were subordinate to those of the plaintiff, by reason whereof the plaintiff’s debt remained unpaid, and she was likely to be defeated in its collection, unless she could follow such proceeds into the hands of those who had so received it. ■, It is not distinctly averred that the defendants, other than the original debtor and the trustee, had notice of.the trust. But it is to be inferred that they were chargeable with constructive notice from the registry of the deed.
Judgment was demanded against the principal debtor for the amount of his debt and also against the trustee and the other defendants for the value of such portions of the trust estate as they had converted to their own use.
Upon motion of the several defendants, the bill was dismissed for misjoinder of defendants and causes of action. The single question presented by the appeal is, was the bill multifarious? Did it unite distinct claims against unconnected parties ?
It is, indeed, necessary that the cause or caus.s of action should affect all parties to the suit, but not all equally or in the same manner. For equity requires that all persons having any interest in the subject matter of the controversy, or in the relief to be' granted, should be made parties, however diverse and unequal their interests may be. So, it is not indispensable that all the parties should have an interest in all the matters contained in the suit. It suffices if each party has an interest in some matters in the suit and they are connected with the others. Pomeroy on Code Remedies, Sec. 480; Story on Equity Pleadings, Sec. 271 a; Howell v. Howell, 20 Ark., 25.
The object of the present bill, that is, the relief sought, is the administration of a trust as against a faithless trustee and others, who, it is alleged, had wrongfully interfered with the trust property. The debtor who produced the crop is the common source of title to all the parties. And the purpose of the plaintiff in joining as defendants subsequent purchasers of portions of. the mortgaged property is that their equities may be compared with hers, their claims be cut off and they be required to pay the value of property which is subject to the plaintiff’s lien, but which they have consumed or converted into money.
In Gaines v. Chew, 2 Howard, 619, a bill filed by the devisee under a later will against the executors of an earlier will, and all who had purchased portions of the testator’s property from them was held not to be multifarious.
In Perry on Trusts, Sec. 877, it is said: “If the trustees commit a breach of trust, and third persons get the benefit of it, they must be joined as defendants in a suit by the cestui que trust. If the trustees convey the property to a third person with notice of the trust, or without consideration, such third person may be sued by the ceshás que trust, and must be joined with the trustees in a suit for relief by the cestuis qiie trust!'
Decree reversed and cause remanded for further proceedings. | [
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Eakin, J.
J. C. and Julia Reed, heirs of Reuben Reed, who died seized, in 1865, sued Hart in ejectment, on the 9th of August, 1882, to recover a forty-acre tract of land in Scott county.
Hart answered, denying the right of Plaintiffs, or that he unlawfully held possession. He pleaded the Statute of Limitations, of seven years, and set up .title in himself, by virtue of a deed from Jacob C. Moles as guardian of Plaintiffs, executed in 1872, and exhibited with the answer. It recites that Moles, of Arkadelphia, in Clark county, as guardian of Plaintiffs, by order of the Probate Court of Scott county, on the 4th day of October, 1871, had been empowered to sell and convey certain real estate of said minors; that he had taken the required oath and given the required bond, and given four weeks’ notice by publication ; that pursuant to said order he had, on the 22d day of January, sold the tract in question to J. G. Hart for $150, and reported the sale to the Scott county Probate Court, which was confirmed. Then follows the conveyance.
Plaintiffs filed exceptions to this exhibit, having first, however, amended the complaint, introducing Annie Featherstone as a party plaintiff, and alleging that, on the nth of September, 1882, she had purchased the land from the Reed heirs for $1000, and obtained a conveyance regular in form and duly recorded.
The cause was transferred to the Fort Smith district of Sebastian county, where the exceptions to the deed from Moles to Defendant were overruled.
Defendant made an amended and supplemental answer, showing that pending the suit, on the 20th of November, 1882, Plaintiffs, for a valuable consideration, had sold the land to one Bates, who afterwards for valuable consideration conveyed to Defendant, exhibiting the deeds. He denies Annie Feather-stone’s right, saying that the deed under which she claims was executed to her by her husband as agent of Plaintiffs, without consideration and with intent.to defraud them, and that Bates when, he purchased from the heirs had no notice of it.
The cause was submitted to the Court on law and facts. The Judge found that Reuben Reed died seized, leaving Plaintiffs his only heirs; that his personal representatives, and Moles the guardian of his children,' were all appointed and qualified by the Probate Court of Clark, and not of Scott, county; that the Probate Court of the latter county, in October, 1871, made an order authorizing Moles, as guardian, to sell certain lands belonging to his wards, in Scott county, including this tract; that he sold it to Defendant on the 22d of January, 1872, and conveyed it by deed, which sale was reported and confirmed; but that it was not properly acknowledged, although filed for record on the 2d of June, 1873; the Defendant has since been in possession under the deed.
Also, that on the 30th of January, 1882, the two wards, being both of age, agreed with Featherstone that he should at his own expense bring suits for certain lands in Scott county, which had belonged to their father. If he recovered nothing he was to pay all the costs. They were to give him half of all he might recover, in land or money, by compromise or otherwise. This agreement was not acknowledged or proven so as to be admissible to record. At the same time they gave him a power of attorney, which it was conceded might be regarded as part of the same transaction with the agreement, to be construed together. The power of attorney made him their general agent for all lands in Scott county inherited from their father. It empowered him to bring suits, and sign their names, and do all things as fully as if they were present doing it in person, and in doing so to use his own judgment. This was acknowledged and filed for record on the 18th of February, 1882. This suit was begun under that authority. That Featherstone, by deed purporting to have been executed on the nth of September, 1882, but not in fact acknowledged until the 22d or 23d, nor recorded until the 4th of December, conveyed to his wife, Annie, all the land covered by the power of attorney, for the expressed consideration of $1000 in cash. That nothing was paid by her, but it was agreed that $500 wras to be paid for the Reeds about the middle of the following March. The other $500 she was to pay one Gilbreath upon a debt her husband owed him. These arrangements were by parol. No note nor security was given. She had no separate estate nor money. The execution of this deed was not known to the Reeds until about the middle of December. That meanwhile, on the 20th of November, 1882, the Reeds sold their interest in the lands to Bates for $500 cash, by deed with special warranty, which he had in his possession before the record of the Featherstone deed, and without notice of it. He did, however, have notice of the power of attorney, and that Featherstone had brought the suit under a contract by which he was to have some interest in the land. That Plaintiff Annie tendered the $500 to the Reeds at the time appointed in March, which they refused to accept. That John C. Reed was born in i860 ; and Julia in 1863; and the latter was married on the 21st of September, 1882.
After divers declarations of law, which it is unnecessary to consider, inasmuch as the judgment must stand or fall by the application of the correct law to the facts, the Court' rendered judgment for the Defendant, that he retain the land and recover costs. The Plaintiffs appealed.
The death of the ancestor in possession, with proof of the character of Plaintiffs as sole heirs, and of the adverse possession of Defendant at the time of suit, made a prima facie case for Plaintiffs; and unless it be shown that a better title became vested in the Defendant before suit, the Plaintiffs would at least have been entitled to a judgment for costs up to the time when a better title was acquired by Defendant pendente lite, if he acquired any. His only claim to title before suit, was under the purchase from the guardian of the Reed children at the sale ordered by and conducted under the Scott county Probate Court.
The first question presented regards the jurisdiction of that Court to make such order and confirm the sale.
The proof, although not very definite on this point, tends to show that Clark county was the domicile of the ancestor at the time of his death. Letters of administration- were there granted on his estate, and the Probate Court of that county appointed the guardian for his children. They seem to have resided during minority in Clark, and so far as appears were never in Scott.
The order for sale was made by the Scott county Probate Court in October, 1871. Proceedings for the sale of the real estate of minors were then regulated by the Act of December 23, 1846, Secs. 1 and 2, which were brought into Gould’s Digest, p. 134. It is provided, amongst other things, that “the Probate Court” shall have power, upon filing the proper affidavit therein prescribed, to grant orders to administrators, executors and guardians, to sell any or all real estate, belonging to any estate, not otherwise provided for. It fails to designate what Probate Court is meant, whether the one appointing and controlling the guardian, or the court of the county in which the lands lay. This is the first act providing for the sale of a ward’s land, upon application of a guardian, by order of a Probate Court, although that power always existed in the Court of Chancery, upon equitable principles. There had, however, been provisions made for the sale of lands, on the application of administrators and executors, for the payment of debts. They were adopted early in our state history, being found in the Revised Code (Sec. 147) and remained in force until the adoption of the Civil Code of 1868. They required that the application for such an order should be made to the Probate Court of the county in which the lands are situate. The Act of December 23, 1846, enlarged the scope of purposes for which such sales might be made, and associated “guardians” with personal representatives (ubi supra) but made no change as to the tribunal. It may fairly be inferred that, by this association, the Legislature contemplated that guardians should conform to the same rule, and make their applications for the sale of lands in the county where they lay. This view derives strength from a supplemental or cumulative act on the same subject, approved January 17, 1855, (Gould's Digest, p. 135,) in which guardians are again grouped with personal representatives, and it is provided that the sales shall be ordered whenever it is made to appear to the satisfaction of the Probate Court of “ the proper countySo general a phrase would not be used if there were a certain court, that is the one issuing letters, to which application should be made, but it is very apt, in reference to property which may be in any county in the State—thus giving jurisdiction to that particular county. It seems that under the law as it existed up to the time of the Civil Code of 1868 there can be but little question of the jurisdiction of the Probate Court of the county in which the lands were situated.
The Civil Code provided (Sec. 88) that actions for the sale of real property, amongst other things, must be brought in the county in which the personal representative of the deceased person was qualified. This Court held in Gordon v. Howell, 33 Ark., 383, that this applied to applications made by executors and administrators to the Probate Court, for orders to sell lands to pay debts. But it obviously has no application to guardians, who are permanent, and can have no concern about where the personal representative may have been qualified, whose duties are transient for the purpose of settling the estate. A guardian, for instance, may be appointed for a minor devisee, whose property and residence may be far distant from the forum where the personal representative may have qualified.
* The idea that applications for sales by guardians should be made to the forum where the lands lie seems to have survived the Code. At a session of the Legislature held in November, 1868, the passage of some chapters of what was intended to be a general code of laws was attempted. By the 33d section of the chapters on “curators, guardians, and wards” it was provided that real estate of minors might be sold, whenever it might appear to be for his benefit to do so in order that the proceeds might be re-invested; and that his guardian or curator might obtain an order for the purpose “ from the circuit court of the county in which such real estate, or the greater part of it, might be situated.” This “Digest,” as it was called, did not take effect, having been rejected by this Court on constitutional grounds affecting the mode of its adoption, Vinsant v. Knox, 27 Ark., 266, but it is indicative of the prevalent legislative sense, at the time, of the proper practice, or rather the better policy, as to the forum to be adopted in such cases. It is noteworthy, too, that five years afterwards, by act of April 22,1873, the same section was re-enacted. Pamphlet Acts of 1873, p. 194. This last statute, it is true, did not affect this sale, which was ordered in 1871, but it goes somewhat to fortify the idea that the continued policy for the state was and had been to leave the jurisdiction in such matters, where, by strong inference at least, it had been originally placed by the act of 1846. This is law to this day, and has been brought forward into Mansfield’s Digest, Sec. 3509. • This displays a system by which we endeavor to supply the omission in the act of 1846, which fails to designate the probate court meant, by reasoning from the organic unity of the whole system. Lieber's Hermeneutics, Hammond's Notes, p. 278.
It is not necessary to hold that in this case the jurisdiction of the Probate Court of Scott was exclusive. There are many instances in which the same jurisdiction may co-exist in several tribunals, to be exercised by the one first acquiring it. It will be enough to decide this point when it may arise. Our present concern is with the jurisdiction as it existed in 1871 and 1872, when the Probate Court of Scott made the orders. From the best light which we can bring to bear upon an obscure, and very doubtful question, we have been led to conclude that the pro ceedings of the Scott Probate Court should be held valid, as within its jurisdiction.
But this does not determine the case. The burden was on the Defendant to show that it had been duly confirmed, as without confirmation the sale would not be effective to pass any title. This confirmation will not be presumed, under the rule that applies when probate courts have jurisdiction, that all things were done rightly unless the contrary is affirmatively shown. The meaning of that rule is, that when a substantial order or judgment is shown to have been made, it will be'presumed that all the proper preliminary steps have been taken, which were necessary to make such order or judgment correct, that is after jurisdiction has been acquired—that is to say, it will be presumed that the Court proceeded orderly from the time jurisdiction attached to the effective judgment. But the presumption will not extend to show that the final order, consummating the proceedings, has been itself made as a matter of course, for, perchance, the Court may not have seen fit to make it out at all. There must be proof. The recitals of the guardian’s deed would afford prima facie proof of the confirmation if properly acknowledged and recorded. Gould’s Digest, p. 269, Sec. 30. It was filed for record on the 2d day of June, 1873, but was never acknowledged in accordance with the law then existing. The certificate only show^that the guardian appeared before the officer and acknowledged “ in due form of law” that the instrument was “his act and deed as such guardian.” It omits to state “ totidem verbis ” that it was executed “for the consideration and purposes therein mentioned and set forth,” and it was not necessarily to be inferred that it had been so executed, from the expression that the acknowledgment had been made in due form of law, for an insufficient acknowledgment as to matter may be made in legal form. The matter acknowledged should appear with certainty.
This cause was submitted to the Court below, without a jury, on the 29th of June, 1883. Pending the suit an act was passed, on the 8th of March, 1883, (Pamph. Acts, p. 106,) rendering valid the record of all instruments prior to the first day of January preceding, which purported to have been executed before any officer, and which had not been theretofore invalidated by some judicial proceeding, notwithstanding such acknowledgment may have been on any account defective. This statute applies to suits then pending, as well as to those thereafter to be brought, and placed this guardian’s deed upon the same footing as an instrument of evidence as if it had been properly acknowledged at first, unless rights had meanwhile become vested in other innocent parties. This leads us to investigate the nature and origin of the claim set up by Mrs.' Annie Feathi erstone.
She claims under a deed executed to her by the Plaintiffs, J. C. and Julia Reed, by and through her husband, who was their attorney at law and in fact. It was made in the name of the heirs alone, pending the suit, and embracing all the lands belonging to their father, for which they had brought suit against different defendants in Scott county, holding under similar conveyances made by the guardian. It professes to convey the whole interest, without any recognition of Featherstone’s claim to a half, as fegp. No consideration was paid by Mrs. Featherstone, and, being covert, she could not make a personal contract to pay any. Her husband, who knew nothing of the sales by the guardian, who had made a speculative bargain with the Reed heirs for a half of the proceeds, to recover the lands or money on compromise or on sales, of their possible right, transacted the whole business. The Reeds did not know of it. Besides which, the Defendant had been in actual possession, claiming under the guardian’s deed. There is no reason to attribute fraud to Mrs. Featherstone, nor, perhaps, was actual fraud intended by her husband. He made an effort to bolster the suit by the introduction of his wife as claimant, intending to account to Plaintiffs for half the purchase money. Whether it was enough or not does not concern Defendant. But he may well contend that Mrs. Featherstone was not an innocent purchaser at all. That she stood simply in the shoes of the original Plaintiffs, and had no such vested right as would prevent the operation of the curing act. As for Featherstone he was no party to the deed nor the suit, nor was he part owner of the lands. His interest was only in the result of the suit. Mrs. Featherstone does not occupy the position of a bona fide purchaser for value.
It is not necessary to invoke the aid of the curing act above cited in order to give the deed of Moles validity as a conveyance. Its execution was not denied, and if the sale had been confirmed it would have passed title without recording. The statute makes it evidentiary only when acknowledged and recorded. The curing act, in this application of it, places the deed of the guardian upon the footing that it would have occupied as evidence. Laws regulating evidence may embrace past transactions. One cannot have a vested right in a rule of evidence. The deed was properly considered as affording by its recitals prima facie evidence that the sale had been confirmed by the Probate Court. This was enough for Defendant unless this evidence be rebutted by counter evidence, preponderating to show that it had not.
Upon this point there is only oral testimony—that of one witness, L. D. Gilbreath, the clerk of the Probate Court during 1871 and until the fall of 1872. He says that he was constantly in court during its sessions, and has no recollection of any application made by said guardian for the confirmation of any of the sales of the lands of the Reed estate, although he remembers the sale very well. In the summer of 1882, he examined the records, in company with Featherstone, beginning at a point before the order of sale was made, and carefully examining the records “ as to all matters enrolled from that time till late in, 1873," page by page, and order by order. He could find no order of confirmation in any of the proceedings of the court, and was well satisfied that no such order was ever made. This,' as the testimony reads in the transcript, is as strong proof of a negative as can be made upon the credence to be given to the memory of a single unimpeached witness. Yet it is not conclusive. In determining matters of fact depending upon oral testimony in whole or in part, the same rule is applied to the finding of a judge, as obtains with regard to juries. Bills of exceptions' rarely give the language of witnesses literally, but only the substance and effect. There is always much which cannot be represented in writing which may nevertheless influence triers of fact, whether judge or jury. Manner, tone, general appearance, terms of expression, readiness, equivocation, hesitation, reluctance, evident bias, and many other nameless indications occur, which cannot be imported into the bill of exceptions, and determine the weight to be given to the testimony of any individual. These things are all apparent to the jury and the judge. Hence the rule has been established that where the jury has found a fact, which does not seem so contrary to the evidence as to have induced the Circuit Judge to grant a hew trial, this Court will not do so, unless there be something shocking in the preponderance to the contrary, something to make it apparent that the jury had acted under passion, or prejudice, or undue bias, or a mistaken view of the law, and that the Circuit Judge had not wisely exercised his power in refusing a new trial. This Court has several times indicated, however, that this rule does not bind the Circuit Judge himself in jury cases. He is there in the arena, and everything transpires under his eyes. He ought to grant a new trial whenever he’is strongly impressed with the conviction that the findings are erroneous. His action in doing this cannot be reviewed. It is a delicate discretion given him in truth, and it is because he has that and is supposed to have exercised it, that this Court, in deference to his better means of understanding the case, has adopted and adhered to the rule announced. It obviously applies where the Judge has himself tried the facts upon oral testimony.
The deed of the guardian recites that the sale was reported and confirmed on the 22d day of January, 1872. It was made and acknowledged on the 3d of February following. As it could not recite a future event, there was no necessity for extending the examination beyond that date, or for examining any prior to the order of sale made at the October term, 1871. It would have been more natural and satisfactory, and indeed the ordinary prompting of a business man, to have turned first to the records of 22d January, 1872, to see if any orders at all were made on that day, and what they were. If none were found, to have carefully read the record at length, down to the execution of the deed, and back to the time of making the order. Such an examination would have inspired more confidence than one made by running over the record of nearly two years, looking at order by order upon each successsive page. Human attention flags with monotonous occupation and becomes less alert. The witness says he examined very carefully, but that may mean much or little, according to the individual’s idea of care. He does not say he read the orders at length. We. think we may presume that records may not be always, and necessarily, kept neatly and well arranged. Titles and captions may be mistaken, and different orders may be in such juxtaposition as to seem but one to a casual observer. The records were subsequently burned, and the accuracy of the examination cannot be verified.
These are simply considerations to show that the proof against the confirmation may reasonably have been considered by the Circuit Judge insufficient to overturn the prima facie case made by the recital. We have no reason to suppose that the examination was not made with fidelity in the mode adopted, and if the case were here on purely written testimony might hold that it was sufficient to overthrow the recital. But that was a matter of which the Circuit Court had better opportunity for judging than we have here.
There is one very potent consideration bearing upon this point generally, without special reference to the case in judgment. The object in making any recitals of a court’s proceedings in a deed prima facie evidence, is to make them better assurance of a title, and to relieve the grantee and those claiming under him from the burden of preserving certified copies of the proceedings, and to furnish ready proof at all times, and the only proof in case of the loss of the records by fire or other accidents. It would to a considerable extent defeat this policy if, after the loss of the records, with no chance left to verify the recitals, they should be overturned by any oral testimony except of the most convincing nature. It would afford sometimes the strongest temptation to perjury incases where it might be committed with almost absolute impunity, and would make titles depend upon the strength or weakness of human memory after a lapse of years. The witness here as to the matters of personal recollection speaks after a lapse of ten years from the time of the event, during which, as he himself states, his attention was never called to the point, as to whether there had ever been a confirmation or not. We cannot say that the Honorable Circuit Judge against evidence found that there had been a confirmation.
This is not a case in equity and no discussion of the equitable principles involved would be in good taste. We forbear any comment upon the nature or validity of the contract made with Featherstone by the heirs. We'are not prepared to hold, under our own decisions and the more recent decisions of other American states, that it was void at law for champerty and maintainance. But the utmost effect of it, conceding it to be valid, would give neither to Featherstone nor to his wife any title which the heirs of Reed did not have after the guardian’s sale.
We may say that the decision and judgment of the Circuit Court seems just, as the Reed heirs have voluntarily parted with all their title to Bates for á valuable consideration, besides having had the benefit that we may presume enured to them from the guardian’s sale; and nobody appears to have actually paid out anything on the land, save the Defendant, and those under whom he claims. We cannot see that any error in law has been committed in reaching the result.
Affirm. | [
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Smith, J.
Burgess and Poole held separate mortgages upon the crop of cotton to be produced by Merrick Williams in the year 1880, in Union county. In December of that year Williams, the mortgagor, brought replevin before a justice of the peace, against Burgess, for four bales of that crop. On the day of trial, Poole appeared before the justice and expressed his desire to intervene for the property. He was informed that the law had made no provision for an interplea in this class of actions, but that he could make himself a party. He was accordingly, upon his own application, admitted as a co-plaintiff, but did not, it appears, offer any evidence in support of his claim. Judgment having been given for Burgess, Poole appealed to the circuit' court, making and filing the customary affidavit for that purpose, in which he is described as a party to the proceeding.
Subsequently, and before any disposition had been made of this appeal, Poole instituted a cross-replevin against Burgess before another justice of the peace for this identical lot of cotton. This last-mentioned action also found its way into the circuit court by appeal, and was there determined in favor of Poole. This last judgment is the one we have to deal with,
The record does- not show what became of the first appeal; but, from the statements of counsel on both sides, it is probable it was dismissed, either upon.Poole’s own motion or for want of prosecution, before the trial of the second appeal. If this be so, the obvious effect was to leave the judgment of the justice of the peace in full force, the same as if no appeal had been taken. Ashley v. Brazil, 1 Ark., 144.
But whether dismissed or not, the judgment of the justice stands until it is set aside by a superior court. The grant of an appeal did not impair it. No^d¿d it revive Poole’s original cause of action, which had been destroyed by merger, so as to enable him to maintain an independent suit upon it. Burgess, if sued again for the same matter, during the pendency of the appeal, might plead the former judgment in bar. Cloud v. Wiley, 29 Ark., 80; Biscoe v. Butts, 5 Id., 305; Beers v. Weerpul, 24 Id., 272.
It was an issue in the present action that the matter in controversy was res judicata. Burgess filed in the circuit court a plea of former suit pending between the same parties and involving the same subject matter. And on the trial he read in evidence the docket entries of the justice in the first action, showing the facts above recited.
If Poole had kept aloof from the litigation between Williams and Burgess, he would not have been concluded by any judgment therein. Being a stranger to the proceeding, he might have sued out his writ of replevin for the same property without waiting for the determination of that suit. Hagan v. Deuell, 24 Ark., 216. But, having voluntarily come in, he is bound by the result, as much as if he had been an original party.
Section 4946 of Mansfield’s Digest expressly authorized his admission as a party. And he could have effectively asserted in that action any claim he may háve had which was derived from Merrick Williams, the common source of title. Files v. Watt, 28 Ark., 151. The justice, then, has jurisdiction over the subject matter and the parties. And his judgment, until vacated in some mode known to the law, is as conclusive as that of a court of record. Gates v. Bennett, 33 Ark., 475.
Otherwise, we should have two courts of concurrent jurisdiction, making contradictory orders about the possession and ownership of the same chattels. The court which first' obtained possession of the case had the exclusive right to proceed to a final-determination.' If Poole's first appeal has been dismissed the controversy is at an end.^ He could not abandon his appeal without forfeiting all his rights in the property. If that appeal is still pending and undetermined in the court below, a trial anew on the merits may still be had.
Reversed, and remanded for a new trial. | [
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' Battle, J.
John Marcum was indicted for an assault with intent to commit a rape; and was convicted in the Poinsett circuit court of a simple assault, and fined in the sum of one hundred dollars. Judgment was rendered against him for the fine and costs, and the court ordered that he be committed to, and remain in, the custody of the sheriff of Poinsett county until the fine and costs should be paid. The sheriff, thereupon, took him into custody. Marcum then filed a motion for a new trial, which was overruled; tendered a bill of exceptions, which was by the court examined, approved and signed; prayed an appeal to this court; and, together with C. C. Hale, J. N. Thorn and I. W. Duke, executed a covenant that he, Marcum, in case the judgment aforesaid should be affimed by this court, would pay said fine and costs, and costs of appeal and all damages thereon, or surrender himself to be imprisoned and confined in jail in execution of the judgment as required by law, which was filed in court and approved by the clerk; and he was discharged from custody. All this, except the finding and return of the indictment, occurred during the April term of the Poinsett circuit court, in the year 1884. . On the 2d day of January, 1885, appellant, the State of Arkansas, filed her complaint in the Craighead circuit court, reciting therein, substantially, the foregoing facts, and alleging that Marcum had failed to perfect his appeal by filing transcript in the office of the clerk of this court within the time prescribed by law, and that he and his sureties had failed to pay said fine and costs ; and praying for judgment against Marcum, Hale, Thorn and Duke, the defendants in the complaint, for the sum of five hundred and forty dollars and twenty cents, the amount of the fine and costs. Appellees demurred to the complaint, because it failed to-state facts sufficient to constitute a cause of action. The court below sustained the demurrer and dismissed the action, and appellant appealed.
The demurrer was properly sustained. No breach of covenant sued on is shown in the complaint. The statute, under which this covenant was executed, does not authorize the granting of appeals from judgments of circuit courts in prosecutions for misdemeanors, except on condition “that the record, is lodged in the clerk’s office of the supreme court, within sixty days after the judgment,” and expressly says: “The appeal shall not suspend the execution of judgment, unless the defendant causes to be executed, before the clerk of the circuit court, a covenant by good security, to be approved by said clerk, for the payment, in case the judgment is affirmed, of the fine and costs, and costs of appeal and all damages thereon, and for the surrender of the defendant in execution of the judgment, when the judgment is for imprisonment, or, on his failure so to surrender himself, for the payment of a sum equal to two dollars for every day of imprisonment adjudged, and causes said covenant to be copied into the transcript, upon which being lodged with the clerk of the supreme court, he shall issue a certificate that execution of the judgment is suspended.”
Marcum should not have been discharged from custody until he paid the fine and costs, or suffered the penalty for the failure to do so, or until he filed a transcript, with the covenant executed by him and his sureties copied therein, with the clerk of this court, within sixty days after the judgment. Until such transcript, with the covenant copied therein, was filed within the sixty days, there should have been no suspension of the execution of the judgment for fine and costs against him. The transcript was not filed. The covenant sued on thereby became of no effect. No right of action accrued or could accrue on it. Mansf. Dig., Secs. 2463-64.
The judgment of the court below is affirmed. | [
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Smith, J.
Upon a criminal prosecution begun before the corporation court of Jonesboro, and afterwards transferred by appeal to the circuit court, the defendant was convicted of a violation of the following ordinance of the town:
“The sum of one hundred dollars is hereby levied on each and every ten-pin alley, that is kept and run for gain or profit, or otherwise, within the limits of the incorporated town of Jonesboro, for the period of twelve months or less.
“Be it enacted, that any person who shall exercise any of the privileges embraced in this ordinance, without having procured a license therefor, shall be deemed to have committed a misdemeanor, and shall be fined for each offense in the sum of twenty-five dollars, and each day shall be deemed a separate offense.”
The general incorporation act, from which the town derives all of the powers that it possesses, contains no specific grant of authority to enact ordinances requiring keepers of ten-pin alleys to procure a license before engaging in such business. The nearest approach to it is found in Section 751 of Mansf. Dig., which confers authority upon the town council to license, regulate, tax or suppress billiard tables, or any other tables, or instruments used for gaming. The evidence established the fact that this alley was used as an adjunct to a dramshop, and that it was the invariable custom, understood by all persons rolling upon it, for the losing party to call out the .treats, whisky or cigars, at the bar. The statute empowers the authorities of a town to suppress gambling devices, but it is beyond the power of the legislature to authorize the licensing of them. State v. Lindsay, 34 Ark., 372.
The legislature may," doubtless, authorize a municipal corporation to impose a license fee upon' a ten-pin alley, kept as' a place of amusement or recreation for gain and profit. But the authority to enact such an ordinance must plainly appear in the statute. It will not be inferred from terms of doubtful or uncertain import. Dillon Mun. Corp., 3 ed.; Secs. 89, 361; Martin, ex parte, 27 Ark., 467.
Reversed for a new trial. | [
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Cockrill, C. J.
The appellant was indicted and convicted of uttering a forged instrument, at a special term of the court called by the circuit judge under Section 436, et sequitur, Mansf. Rev. St.
The matters assigned as error go to the regularity of the order, made by the judge in vacation, calling the special term, rather than the merits of the case. The forged instrument purported to be a school warrant, signed by two directors. The statute entrusts the management of school affairs to three directors, and it is their duty to issue orders on the county treasurer in payment of wages due teachers. The order uttered by the appellant was of this class.
It was set out in the indictment, and as it bore the names of two directors only, it is argued that the instrument fails to show legal efficacy on its face, and that the indictment is therefore bad. But the statute provides that “authority conferred upon three or more persons may be exercised by a majority of them.” Mansf. Rev. St., 6366. In Holland v. Davies, 36 Ark., 446, this provision was held to confer authority upon two school directors to perform an act required of the directors generally, and it is conclusive against the appellant’s contention. The only other points we need notice are as to the sufficiency of the order calling the special term.
As was said in Dixon v. State, 29 Ark., 165, “The authority to hold the term for the trial of the defendant, depended upon the following facts : That he was cbnfined in jail awaiting trial before the court; that it did not interfere with any other court to be held by the judge, and was not to be held within twenty days of the regular term; that an order therefor had been made by the judge, at least ten days before the day appointed for holding it, and by him transmitted to the clerk and the same had been entered upon the record, all of which,” as the court say in that case, “ appears by the record, or is within the judicial knowledge of the court.”
The order before us does not specifically set forth that the special term would not interfere with any regular term of court to be held by the circuit judge,' nor that it was not within twenty days of the regular term of the circuit court of the county in which it was to be held. This was not necessary. The times for holding terms of courts are fixed by act of the legislature, and we take judicial knowledge of them. That is the meaning of the court in the last clause of the decision quoted. The day upon which the special term was held is dis closed by the record, and we take judicial notice of the fact that it does not interfere with a regular term, and that it was not within twenty days of the time for holding the regular term in the county.
It is argued that the statute intends that the special term shall not begin within twenty days of the adjournment of the regular term, and that we have no knowledge of the time when the court adjourned. The object of the statute is to give the circuit court the "opportunity of clearing the jail without inconvenient and expensive delay, and if this should become necessary immediately after the adjournment of the regular term, the judge might appoint a special term to begin ten days thereafter. This is fair to the innocent persons who are confined in jail, and to the county which bears the expense of all the prisoners.
Upon first looking into the record we were not satisfied, from ihe showing there made, that the order of the circuit judge was made and entered of record ten days before the term was held. The appellant made no objection upon that score, but inasmuch as the statute, as construed by the court, makes it necessary that the fact should appear in order to show the jurisdiction of the circuit court, or to show that there was, in fact, a court, (see Dunn v. State, 2 Ark., 230; Pulaski County v. Lincoln, 9 Ib., 326; Collier v. State, 20 Ib., 36; Dixon v. State, sup.) we declined to proceed to review the proceedings. The attorney general, however, suggested a diminution •of the record, and in the usual manner has brought to our attention the further proceedings in the case, from which we are satisfied the ’order was made and entered of record within the time prescribed, and the judgment must be affirmed. | [
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Smith, J.
Mrs. Summers sued the railroad company before a justice of the peace for killing her colt,' and recovered judg* ment by default. The defendant appealed, and in the circuit court attempted to get rid of the action upon a suggestion of want of jurisdiction in the lower court, alleging that no valid service of process had been made upon it. But the attempt was unsuccessful. The circuit court does not sit to review and correct errors and irregularities committed in the magistrate’s court, but tries the cause anew on its merits. By appealing the defendant made itself a party to the proceeding, and could not object to the jurisdiction over its person. McKee v. Murphy, 1 Ark., 55; Smith v. Stinnett, Ib., 497; Ball v. Kuykendall, 2 Id., 197; Sykes v. Laferry, 23 Id., 99.
The jury found for the plaintiff, and that the value of the colt was $20. Their verdict is not unsupported by evidence. The animal was killed by a passing train. It was, therefore, incumbent on the company, under the statute, to show that it had exercised due care and caution in the operation of its train. The testimony tended to prove that the train was running an ascending grade at night with a speed of twelve or fifteen miles an hour; that the colt was discovered on the track fifty yards ahead, and, as the jury might well believe, running in the same direction that the train was pursuing, and that the only means used to avoid the accident were to blow the whistle and to shut off the engine.. The fireman indeed says that all possible efforts were put forth to save the colt after discovery of the danger; but he does not mention the usual appliances that are resorted to under such circumstances, as the application of brakes, sanding the track, etc. The jury might with reason conclude that the presumption of negligence raised by the striking of the animal, was not rebutted.
The jury also found specially that notice of the killing had not been posted, and the court in consequence doubled the damages. Sec. 5538 of Mansfield’s Digest requires a description- of live stock killed or injured by trains to be posted at the nearest depot within a week, and the same to be kept posted for twenty days. One witness swore that he had examined the side of the depot-house at the nearest station, where such-.notices are usually put up, two or- three days after the killing, and had found no advertisement. This is not sufficient, as the law may have been complied with afterwards. But the jury doubtless felt themselves bound by the direction of the court upon this subject, that proof of such compliance devolved on the defendant.
As a general rule, both in civil and criminal cases, the burden of proof rests upon him who asserts the affirmative of a question in dispute. But there are well defined exceptions, in which the proposition, though negative in its terms, must be proved by him who advances it. Thus, if the plaintiff grounds his right of action upon a negative allegation, the establishment of this negative is essential to make out his case. Here Mrs. Summers’ claim to double damages is based upon an averment that the company did not advertise. Hence she must offer some proof of the failure to advertise; not very stringent, perhaps, but such proof as, in the absence of counter testimony, would warrant a jury in inferring that notice had not been given.
Again, Mrs. Summers’ action may be regarded in the light of a prosecution for a penalty given by statute. The rule in that case is that, if the statute, in describing the offense, contain negative matter, the complaint must contain a corresponding negative allegation and it must be supported by prima facieproof; unless, indeed, the matter lies peculiarly within the knowledge of the other party, in which case the allegation is taken as true, unless disproved by that party. This last qualification finds its illustration in prosecutions against unlicensed persons for doing acts which are unlawful without a license; for example, to sell liquors, or to practice certain professions. 1 Gr. Ev., Secs. 78-9; 1 Whart. Ev., Secs. 356-7; Hopper v. State, 19 Ark., 143; Williams v. State, 35 Id,., 430.
Now, the failure to give notice is not a fact that is incapable of proof, nor is it peculiarly within the knowledge of the railroad company. It is a matter to which any one might testify, 'who-had inspected the depot-house after the lapse of a week from the occurrence of the casualty, and within the period of twenty days thereafter. Neither courts nor juries can be permitted to indulge the presumption that a person or a corporation has; neglected to perform a duty which the statute casts upon him or upon it. This is contrary to a well settled principle that governs in judicial investigations.
If the’ plaintiff shall before the end of the term, enter a remittitur of $20, her judgment will be affirmed, otherwise it will be reversed for a new trial. | [
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Smith, J.
This was an ejectment for 124 19-iooth acres of land; the' plaintiff relying upon a conveyance from the St. Louis, Iron Mountain and Southern Railway Company. After several successive answers had been held insufficient upon demurrer, the defendant filed an amended and substituted answer, in which she denies plaintiff’s ownership and right of possession of the lands mentioned in his complaint, and states that her late husband, J. B. Langley, during his lifetime, and about the year 1874, contracted with the C. & F. R. R. Co., which then owned these lands, for the purchase thereof, and received from said company an instrument in writing, commonly known and designated as a bond for title, or conditional sale, wherein said company obligated itself to convey said lands to her husband, upon his payment of the sum of $585.85, in certain instalments; that he paid $344.59 of this amount, and afterwards became afflicted with paralysis, which so impaired his mental faculties as to render him unfit to transact business, or to be responsible upon any contract which he might make; that while in this condition of mental imbecility, the plaintiff, who is the son of her husband by a former wife, and who fully knew his said father’s condition of mind and body, fraudulently and wrongfully induced him to transfer and assign all his right, title, claim and interest in said bond for title to him, and afterwards paid the remaining instalments of purchase money due thereon, out of the fruits of the labor of defendant and her minor children, the rents of the lands belonging to her said husband’s estate, and the personal property belonging thereto, and received from the St. L., I. M. & S. R’y Co., which had succeeded to all the rights and title of said C. & F. R. R. Co. in said lands, the deed of conveyance exhibited with the complaint. The prayer of said amended and substituted answer is,“that the cause be transferred to the equity docket; that plaintiff’s title to the lands in controversy, by virtue of the deed executed to him, be decreed to be in him in trust for the use and benefit of the estate of said J. B. Langley, deceased, to be administered upon according to the statute in such cases made and provided; that said answer be taken as a cross-complaint against plaintiff, and he be required to answer the same, in default of which it be taken as confessedthat plaintiff’s complaint be dismissed, and for other relief.
To this plea the plaintiff demurred, because, first, the defendant has no such interest in the subject matter of this suit as would entitle her to the relief prayed for; and, second, because there is a defect of parties, in this, that the heirs of the deceased J. B. Langley are not made parties; and, third, because the answer does not state facts sufficient to constitute a cause of action.
The court below sustained this demurrer, the defendant excepted, and declined to plead further, judgment went for plaintiff for possession of the lands, and the defendant excepted and prayed an appeal to this court.
The sufficiency of the final answer is the only question presented. No exceptions were taken to the action of the court upon the previous answers, and the defendant by pleading over abandoned them.
Notwithstanding the general denial of plaintiff’s title, the answer is in confession and avoidance; that is, it admits the plaintiff’s title, but seeks to avoid it by an allegation that his father, through whom he obtained it, was a- person of unsound mind. The defendant sets up no title in herself. She is' the widow of J. B. Langley, who once had an equitable estate in the lands by reason of an executory contract of purchase with the railroad company. But she does not claim either homestead or dower. The answer does not aver that the lands ever constituted her husband’s homestead, nor that she has no separate homestead of her own. Neither does the answer show a title outstanding in another. For aught that appears to the contrary, the plaintiff may be the sole heir of his father.
Now the deed or contract of a lunatic is not absolutely void. It may be avoided by his heirs,, or his personal representatives, or a subsequent purchaser from him. Breckinridge's heirs v. Ormsby, 1 J. J. Marshall, 236. But the widow does not stand in such a relation of privity in blood or representation as to entitle her to enforce a trust against a third person in favor-of her deceased husband.
The defendant, in short, has shown no interest whatever in the premises in controversy. She does not even show a right of dower; for her husband never had a legal title. But even if she were a dowress, whose dower had not been assigned, in these lands, she could not resist a recovery by her husband’s grantee. She must defer her proceeding for dower until the invalidity of the plaintiff’s deed has been established in a proceeding set on foot by those upon whom the law has conferred the right of action. Her interest is, in any event, too remote and indirect to enable her to be the actor in such a controversy, or to defend successfully against the holder of the legal title.
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Smith, J.
Giles, in the year 1881, sued one Christian, before a justice of the peace, upon an open account for $10 and three notes for $59.18 each. He also swore out an attachment upon the grounds that Christian had left the state with intent to defraud his creditors, and was about to dispose of his property with like intent.' The attachment was laid upon a lot of goods, subject to six prior áttachments ; and process was served by leaving a copy of the summons “ at the usual place of abode of the defendant, with Mrs. Christian, a member of his family over the age of fifteen years.”
The plaintiff also caused to be issued and served, a writ of garnishment, requiring the Hope Exchange Bank to answer what credits or effects it had belonging to Christian, and also such further interrogatories as might be exhibited.
Christian not having appeared at the return day, the justice rendered judgment against him for the aggregate of the several debts and . costs, and ordered that if anything remained from the sale of the goods after satisfying the previous attachments it be applied to Giles’ judgment.
The plaintiff then filed allegations and interrogatories against the bank, alleging that it was indebted to Christian in the sum of $200, and requiring it to answer touching said indebtedness, and the cause was continued for three days to allow the garnishee to .answer. But the bank took no notice of the proceeding, and judgment by default was rendered against it for the amount of plaintiff’s demand against Christian.
Afterwards, upon the petition of Hicks, who was doing business under the style of the -Hope Exchange Bank, to which petition Giles and the justice were made defendants, the circuit court quashed this judgment upon certiorari.
It is urged in support of this judgment of quashal, that Giles was not entitled to judgment against Christian, because there was no service of process, either actual or constructive; that he had elected to proceed against Christian as a nonresident and was bound to publish a warning order against him. But this view is not tenable. Of course there must be a judgment against the defendant in the principal action before a valid judgment can be entered against the garnishee. But there was nothing from which it could be inferred that Christian had permanently changed his residence. The affidavit for attachment only disclosed that he was temporarily absent from his. home for a particular purpose. He was not liable to be treated as a non-resident, nor was he actually proceeded against as. such. DuVal v. Johnson, 39 Ark., 182, is an instance where the service of a' summons upon a defendant, by leaving a copy at his residence, with a member of his family over the proper age, was held good, notwithstanding he had been absent in another state for years.
It.was further contended that the garnishment must fail because there was no formal judgment sustaining the attachment. Sec. 377 of Mansfield's Digest requires that an attachment obtained at the commencement of an action shall be sustained or discharged at the time judgment is rendered in the action, unless for sufficient cause the court extends the time of deciding upon it. And it is customary in practice for the record to state distinctly whether or not the attachment is sustained. But no great formality can be expected of justices of the peace without overturning the most of their proceedings. As the plaintiff had judgment for his debt, and no affidavit was filed denying the grounds of the attachment, it will be presumed that the justice sustained the attachment, because he could not have done otherwise. Mansf. Dig., Sec. 379. And this presumption is strengthened by the record, which recites that he condemned the property attached to sale, the proceeds to be applied as the law directs.
But a more difficult question is, as to the power of the justice to render a judgment directly in favor of the plaintiff against the garnishee. Such was formerly the practice in this state. And it was authorized by statute and sanctioned by the decisions of this court. Where the garnishee failed to answer no proof was necessary to charge him. His default admitted his liability to the extent of the plaintiff’s demand, and judgment went directly against him. Gould’s Dig., Ch. 16, Sec. 23; Ch. 17, Sec. 28; Wilson v. Phillips, 3 Ark., 183.
A.nd such is still the practice in garnishments sued out after judgment, (Mansf. Dig., Sec, 3418,) unless indeed, the statute of judicial garnishment has been abrogated; as might be plausibly maintained from the language of Sec. 317 of Mansfield’s Digest, which seems to be equally applicable to both species of garnishments; as well as from the fact that in proceedings by discovery to enforce execution (Mansf. Dig., Secs. 3084-88,) another and not less efficient remedy to accomplish the same end is provided; and from the general consideration, that wherever the Code establishes a rule of practice in the courts, it is meant to be exclusive, not merely cumulative. Mansf. Dig., Secs. 4910, 5317, 6363.
But be this as it may—a point upon which we now express no opinion—it is certain the Code has revolutionized the pracx tice in the matter of charging a garnishee in attachment. This was pointed out in Lewis v. Faul, 29 Ark., 470., where a judgment by default against a garnishee, without proof, or an examination of him, was reversed. We are now asked to go a step further aud declare such a judgment to be, not simply an error, but a nullity.
When a person who is summoned as a garnishee, pending an attachment, fails to appear in person, or answer under oath, his personal attendance for examination may be coerced by rule and attachment, or the court may hear proof of any debt owing by him to, or property held for, the defendant. When it has become satisfied, either from his own disclosures, or from extraneous proof, that the garnishee was, at or after the service of the writ, possessed of any property belonging to the defendant, or was indebted to him, it may order the payment of the money, or delivery of the property, into court, or into the hands of a receiver appointed for that purpose; or it may permit the garnishee to keep the money or the property upon his giving security that the money shall be paid or the property shall be forthcoming. It may make any of these orders, at its discretion and as the circumstances of the case may render most appropriate. If the indebtedness of the garnishee is due and the plaintiff has recovered judgment against the defendant, the proper order will be to require the garnishee to pay the fund into court, and, when paid, the proceeds will be applied to the satisfaction of such judgment. If it is property that the garnishee holds, it may be most convenient to order it to be turned over to a disinterested person with a view to its speedy conversion into cash. If no judgment has been rendered, or if the indebtedness has not yet matured, the garnishee should be allowed to retain it upon the terms prescribed by law. Mansf. Dig., Secs. 341-3.
But whether the garnishee answers and discloses, or makes default and proof is taken, no final judgment,- enforcible by execution, can be rendered in favor of the plaintiff against the garnishee in that action; because no such authority is expressly conferred, or fairly deducible from existing statutes. And garnishment is a purely statutory proceeding, which cannot be pushed beyond the authority of the statute. The object is to facilitate the execution of any judgment the plaintiff may recover, by seizing and holding the property and credits of the defendant that are in the hands of third persons. The office of the writ is that of monition or warning to the defendant’s debtor or bailee not to pay the money or deliver the property to him, but to hold it subject to the orders of the court. The garnishee is not a party to the action ; there is no prayer for relief against him; and there is nothing in the writ, or in the proceeding, or in the law, to apprise him that the plaintiff may, in any contingency, take judgment against him.
But the plaintiff is not without remedy. By the service of the writ, the effects in the garnishee’s possession are in the custody of the law. If the plaintiff prevails in his attachment, he may hold the garnishee personally responsible for those effects, or their value, not to exceed the plaintiff’s judgment. But how is this liability to be enforced ?
If the garnishee answers, and his disclosures are satisfactory to the plaintiff, and he performs the mandate of the court by surrendering the effects or paying his indebtedness, there is, of course, no difficulty. But if he is contumacious and refuses to disclose, or if he answers, but the plaintiff is not satisfied that he has told the truth fully, or if he has answered truly, but is unable or unwilling to perform-the directions of the court, then the remeey is indicated in Sec. 344 of Mansfield’s Digest, viz.: By action against the garnishee, to be begun like any other action, by filing a complaint and suing out a summons. This is the only mode, known to the law, by which a personal judgment can be rendered against a garnishee in attachment. And such is the settled construction of identical provisions in the Kentucky code. Smith v. Gown, 3 Metc., 171; Griswold v. Popham, 1 Duv., 170; Wilcher v. Shea, 13 Bush., 128.
It is still open to the appellant to sue the bank in the mode indicated. But his judgment was unauthorized and void, and the judgment of the circuit court quashing it must be .affirmed. | [
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Carleton Harris, Chief Justice.
On the night of October 21, 1972, shortly before or after midnight, Carla Ann Cobb, age 16, was struck by a vehicle driven by Danny Lee Creed, the incident occurring near a bus stop in the Indian Springs Mobile Home Park in Saline County, said park being owned by appellee, Indian Springs, Inc. Earlier in the evening, Miss Cobb had been picked up while walking on a street of the park by James Tillman Babbitt, a security guard employed by the corporation, who subsequently transported her to the bus stop. Babbitt had parked his station wagon completely off the paved roadway on the grass of the shoulder, and was standing near the car when Miss Cobb, also standing by the car, was struck by Creed’s automobile, a 1964 Mercury Comet, which he had just purchased. Injuries were sustained by Carla Ann and subsequently Carl and Doris Cobb, her parents, instituted suit individually and as next friend of Carla Ann, seeking damages against Creed, Babbitt, and Indian Springs, Inc., the complaint asserting that the injuries suffered were the proximate result of joint acts of negligence of the three, and that Babbitt, at all pertinent times, was acting in the course and scope of his employment with Indian Springs. Indian Springs and Babbitt answered denying material allegations, other than the fact that Babbitt was an employee of the corporation, but Creed, a minor 16 years of age, was not personally served, though summons was issued, and did not answer. Subsequently, it being called to the attention of the court that Creed was a minor, a guardian ad litem was appointed in his behalf and this guardian filed an answer denying the material allegations of the complaint. Thereafter, the answer by Indian Springs and Babbitt was amended, setting up the defenses of contributory negligence and assumption of risk; a further amendment asserted that the parents of Carla Ann were negligent in failing to exercise ordinary care for the safety of their daughter, alleging that such parents had failed to exercise proper supervision or control, having had the opportunity to do so. The guardian ad litem filed his report, stating that he had notified Creed at his last known address in Hot Springs by certified mail of the pendency of the action and had enclosed a copy of the complaint; that the letter was returned with the notation, “Moved, left no address.” The attorney for appellants executed an affidavit, setting out the steps taken to obtain service on Creed, wherein he stated that a summons had been sent to the sheriff of Garland County showing Creed’s last known address in that city, but had been returned “non est”, reflecting that the defendant (according to the affiant) had absented himself from the State of Arkansas. Thereafter, according to the affidavit, pursuant to the provisions of Ark. Stat. Ann. § 27-342.2 (Repl. 1962), service was had upon the Secretary of State as agent of service for Creed and notice of the service and a copy of the process were sent by registered mail to Creed at his last known address. Appellees objected to Creed being made a party defendant and after a discussion of the matter in chambers, the trial judge, in open court, announced that he had determined, as a matter of law, that proper service had not been had upon Creed and he was accordingly no longer a party to the litigation. After the submission of proof to the jury on the part of appellants, appellees moved for a directed verdict, which motion the court granted, directing the jury to find for Indian Springs, Inc. and James Tillman Babbitt, the jury so finding. Judgment was accordingly entered and from such judgment, appellants bring this appeal. Two alleged errors are presented, viz-, first, that the trial court erred in directing a verdict in favor of appellees, and second, that the trial court erred in excluding Danny Lee Creed as a party to the action.
Ten witnesses testified on behalf of appellants, but only five testified about events relating to the manner in which the accident occurred, viz., Carla Ann Cobb, Stephen Moore, DeWayne Moore, Debbie Steele, and Ronald Anderson, a deputy sheriff of Saline County.
Carla Ann testified that she and a girl friend, on the night in question, went to the park clubhouse where recreation was regularly provided; that her parents told her to be back home by midnight, and that the clubhouse closed at 10:00 P.M.; she and the friend went over to the swings for a while which are located near the clubhouse, then started walking to Arrowhead Road. There, the security guard, Babbitt, picked them up in the park station wagon. She said Bab bitt’s job included supervision of the young people in the clubhouse and that there was a 10:00 P.M. curfew, i.e., she was not supposed to be out on the streets after that hour. Babbitt mentioned that fact to them, and they got into the car. Several other youngsters were in the car, and they first rode through the trailer park, around through the shopping center, took two of the youngsters home, her friend still being in the car with her, and drove to the bus stop. There they found Debbie and DeWayne. Babbitt talked with these two for a few minutes, and those in the car then left, drove around, Babbitt making further rounds in checking as security officer, and subsequently returned to the bus stop, pulled off in the grass, and stopped. According to Carla Ann, they were two or three feet from the blacktop. Two other boys drove up and asked the two girls to go with them to an eating establishment, but Carla Ann advised that she was to be in at 12 o’clock and could not go. Her friend got in the car with the boys and Carla Ann walked back to Babbitt’s car and leaned up against it. She said Danny Creed pulled up in his automobile and engaged in conversation with Babbitt. According to the witness, Babbitt wanted to drive Creed’s car but she said the latter refused, stating that, “He just got tags on it that day and he didn’t want anybody to drive it.” Carla Ann added:
“Big Jim [Babbitt] told him, ‘Well, if you won’t let me drive it, take it down to the dairy bar and run it back up here and see what it will do.’ He told him, he said, T want you to shut it down before you come over that hill because there is a gas line or something.’ Some kind of gas pipe and he was scared he would hit them.”
Carla Ann testified that Creed then got in his car, turned it around, and drove out of sight; that he then came back up the road, and though she couldn’t see him, she could hear him. According to the witness, Babbitt remarked that Creed was “going to hit those gas pipes or kill somebody in the trailers or either himself ***. ” She said Creed “came over the hill and kept on coming like there wasn’t nothing in his way.” The witness related that DeWayne Moore ran out in front of him; Creed slammed on his brakes and the car started “fishtailing”; that she was standing on the grass by the street and thinking Creed was going to “go in front” of the station wagon, started to turn around and run; however, the car driven by Creed “run up the side” of the station wagon and struck her as she turned. Carla Ann stated that the speed limit coming into the park was 25 miles per hour, and the maps reflect speed limits in the park to be 25 and 20 miles per hour.
William Stephen Moore, one of the youngsters who was present when the accident occurred and who had ridden to the bus stop with Danny, testified that Danny drove up to the bus stop and talked with Babbitt about his car.
“Well, they were just talking about when his car was running real good and he just got it and seen what kind of motor it had in it, a V-8 and four speed and that it ran pretty good. ***
“Well, we were talking about running cars and how good it would run and how fast it would run through the quarter. What I heard may not be what someone else heard. ***
“I heard Big Jim ask to see if he could drive his car and Danny said, no he just got it and didn’t have no insurance on it and it was the first car he ever had and he didn’t feel safe with anybody else driving it. Danny said, ‘No.’ The next thing I knew Danny was in the car.”
As to the accident, Stephen said:
“Well, we were sitting around there and I didn’t hear much conversation and all of a sudden started hearing, you know, tires squealing and the engine roaring and I see him top the hill and my brother DeWayne jumped out there to wave him down so he would slow down and then Danny locked up his brakes and hit Big Jim’s car.”
Debbie Steele (then Debbie Medlin), who along with Stephen Moore and his brother DeWayne, was with Creed until reaching the bus stop, testified that she heard Babbitt ask Danny if he could drive the car to which the latter responded, “No”, and that somebody said “Go down to the end of the street and see how fast it will run; that Babbitt said, ‘Shut it down when you top the hill.” She was not sure who commented about how fast the car could go, but when asked, to the best of her recollection, who had made the remark, Debbie replied:
“Well, I can’t really say because everybody said that Jim said it. I wasn’t watching and I wasn’t talking in their crowd. We were standing off talking to Steve Moore and I think Carla was there. They were talking about the car and I couldn’t tell who said it and I couldn’t tell by voices who said it. I heard somebody say it and I don’t know who.”
Further, from the record:
“Q You know how far he [Creed] went down the road?
A Yes. He went to Joe and Ray’s Super Market and he turned around in that parking lot and he started from there. I guess at the end of the street is where he started.
Q Did you hear something?
A Squalling tires.
Q, Did you hear an accelerated motor?
A Yes, sir.
Q,I believe he was out of sight, over the crest of the hill?
A At the bottom of the hill he would have been out of sight but all down the street where he was you could see the car.
Q Did you at some point see it coming back?
A Yes, sir.
Q Was it going fast or slow?
A Fast.
Q, What happened then?
A Well, he topped the hill and it didn’t look like he was shutting it down and I heard somebody say, ‘That’s a gas main setting over there.’ The street is here and a gas main over there. DeWayne Moore went out in the street and was waving his hands trying to get him to stop. He locked his brakes and swerved to this side. He came back toward the station wagon. I was sitting on the hood in the front. The rest of them were standing in the back. It happened so fast. That is all I can say. He started toward the car and I started backing up on the hood and that is all I could see. Then I heard the crash. I guess I shut my eyes. I don’t know.”
Dewayne Moore, who had been let out at the bus stop, and was present when the accident occurred, testified that Danny and Babbitt had conversation about Danny’s car.
“Well, we drove up and Jim asked how it ran. Danny said, ‘All right.’ He asked if he could drive Danny’s car. Danny said, no because he didn’t have any insurance. He asked him to go down there by the store, the dairy bar at Pikewood, turn around and come back and when he got on top of the hill, shut if off. ***
“He said, ‘Shut it down on top of the hill’ or ‘before you get to the hill.’”
Strangely enough, Moore was never asked why he ran out and tried to stop the car.
Deputy Sheriff Ronald Anderson testified that the distance from where Creed stated that he had “locked his brakes”, to the point where Carla Ann was struck, reflected that the Creed automobile slid 120 ft. The witness stated that Creed said he had just acquired the car and “he was trying it out.” Further:
“I believe I asked him if he seen the girl and he said, T was going so fast’, he said, T seen somebody standing on the road and I tried to swerve’ and he said he was sliding and couldn’t control his car. ***
“He didn’t argue with me or nothing. He told me what he had done. He was sorry for it and all this. He told me wasn’t any excuse for that type driving.”
We have reached the conclusion that the court erred in directing a verdict. In Restatement of the Law, Torts (1939), § 876, p. 435, we find:
“For harm resulting to a third person from the tortious conduct of another, a person is liable if he
(a) orders or induces such conduct, knowing of the conditions under which the act is done or intending th<p consequences which ensue, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, ***”
Comment under Clause (b) is as follows:
“b. Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious, it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for thé consequences of the other’s act. This is true both where the act done is an intended trespass and where it is merely a negligent act. The rule applies whether or not the other knows his act to be tortious. It likewise applies to a person who knowingly gives substantial aid to another who, as he knows, intends to do a tortious act.
The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered.”
Let us see how the facts in the case before us comport to the authority just cited. The first important fact is that a jury could certainly find Babbitt initiated, by his words, the sequence of events, or the act (reckless driving) which resulted in the injuries to Carla Ann, i.e., Creed did not suggest that he would like to show everybody what his automobile could do in the way of speed; to the contrary, the suggestion came from Babbitt. A jury could have found that Creed would not have driven the car at a high speed in the Indian Springs area except for the suggestion made, in other words, that Babbitt’s encouragement was a substantial factor in causing the resulting tort. Since there was testimony that Babbitt told Creed to “run it back up here and see what it will do”, a jury could have found that the security guard had suggested that Creed drive the car at his highest speed, through recognizing possible danger by telling Creed to “shut it down before you come over that hill because there is a gas line or something.”
Also, the jury might well take into consideration Babbitt’s position of authority which possibly could have been a factor influencing Creed to demonstrate the speed of his automobile. This was not a case of one of his fellow students, or young friends, suggesting that he drive the car at high speed, but rather, encouragement from the individual who was in charge of park security, and a person apparently, from the record, held in respect by the young people. Let us use an illustration. A certain high school prohibits operation of a motorcylce on school grounds. A student has a new motorcycle which he would like to show off. Fellow students are on the grounds. Of course, fast driving could be dangerous to those students on the grounds. While the owner, though desiring very much to exhibit the speed of his vehicle, might ignore the suggestion of a fellow student that he proceed, would he not be more inclined to disobey the regulation if one of the teachers suggested that he “show what the motorcycle could do”?
As to foreseeability, it was only necessary that Babbitt, at the time the suggestion was made, foresee an appreciable risk of harm to others. See AMI 2d Ed., § 301, p. 25. The testimony has been fully set out, and we are unwilling to say, under this testimony, as a matter of law, that Babbitt could not foresee injury to Carla Ann.
In the Connecticut case of Carney v. DeWees, 136 Conn. 256, 70 A. 2d 142, the rationale for imposing liability was the section in Restatement of Torts heretofore set out. There, suit was insituted by an administratrix of a deceased person who was killed when thrown from the body of a truck in which he was a passenger, the truck being in pursuit of a vehicle with which the driver was racing. Prior to the accident, the driver of the lead vehicle, an automobile, had refused, by occupying the left lane and accelerating his car, to permit the other to pass. Judgment was obtained against the driver of the automobile and the Supreme Court of Errors affirmed, holding that the car driver operated his car in a manner that he knew would provoke the truck driver and incite him to attempt to pass, and that as a consequence, the two drivers were participating in a contest of speed. Several other racing cases are cited in the opinion. In the North Carolina case of Boykin v. Bennett, 118 S.E. 2d 12, the court quoted from Blashfield: Cyclopedia of Automobile Law and Practice, Perm. Ed., Vol. 1, § 761, p. 706.
“If two or more persons, while racing automobiles upon a public highway in concert, injure another traveler or bystander, they are individually liable for the damage or injury so caused, although only one of the vehicles engaged in the race comes in contact with the injured person or the vehicle in which he is riding.”
In the Georgia case of Landers v. French’s Ice Cream Company, 106 S.E. 2d 325, two automobile drivers were racing. A child was struck by one of the automobiles which, at the time, was behind; in fact, the lead car had already passed the child when he was struck by the second vehicle. Suit was instituted against both drivers (as well as the owner of a truck illegally parked along the highway). The lead driver, who was past the point when the accident occurred, demurred to the com plaint and the trial court sustained the demurrer. On appeal, the Supreme Court of Georgia reversed, holding that the racing of motor vehicles constitutes negligence and all engaged are liable for an injury sustained to a third person as a result thereof, irrespective of which of the racing cars actually inflict the injury. Several cases in support of the finding are cited, including the Virginia case of Oppenheimer v. Linkous’ Adm’x, 165 S.E. 385, from which the Georgia court quoted as follows:
“If these men, however, had not been racing Linkous would be alive to-day. His death is directly due to the failure of Oppenheimer’s chauffeur to note the passing signal from the Smoot car. (The Smoot car struck Linkous.) He saw fit to invite a race which was not only a proximate cause of the accident but the sole proximate cause.”
We recognize that the instant litigation does not involve racing between two individuals, but could not a jury, in considering the facts herein enumerated, come to the conclusion that Creed, encouraged and incited by Babbitt to demonstrate the speed of his car, engaged in the tortious conduct complained of and that Babbitt was thus guilty of negligence? Could not a jury validly find that both Creed and Babbitt were tortfeasors who, by concurrent acts of negligence, though disconnected, were guilty of acts which were the proximate cause of the injuries sustained?
Appellee argues that even if Babbitt were negligent, there was an independent intervening act which was the proximate cause of Carla Ann’s injuries but we need not discuss this contention for the matters of intervening cause and foreseeability are questions, under the evidence herein, for a jury to pass upon. We only hold that, under the proof offered, a jury question was presented.
As to the second point, appellees had no standing to raise the issue of whether Creed had been properly served but discussion is unnecessary since the case is being reversed. It may be. that Creed can now be served; to say the least, appellants will again have the opportunity to show the steps taken to obtain service and offer further evidence as to the whereabouts of Creed.
In accordance with what has been said, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Fogleman, J., concurs.
George Rose Smith, J., dissents.
Miss Cobb married subsequent to the filing of the complaint and her surname became Boryschtsck, but she will be referred to throughout this opinion by the name of Cobb.
Carla Ann mentioned that the young people had ridden with Babbitt before, having requested if they could make his “rounds” with him. | [
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Conley Byrd, Justice.
Appellants Cletes Estes and Mitchell Colburn were found guilty of having delivered a controlled substance, dl-Amphetamine, contrary to Ark. Stat. Ann. § 82-2617 (Supp. 1973). The jury fixed their sentences at 12 years in the Department of Correction, but upon a motion for new trial the sentences were reduced to ten years. Both appellants contend that the trial court erred in overruling their motion for new trial. In addition, appellant Estes contends that the verdict is against a preponderance of the evidence and that the trial court erred in permitting the State to refer to a sale of marijuana.
1. The trial court’s order overruling the motion for new trial and reducing the punishments from 12 to 10 years recites as follows:
“That during the course of the trial, and particularly during an in chambers discussion of the appropriate jury charge regarding the penalty to be assessed in the event of a finding of guilt of the Defendant by the jury, a conflict arose between the State and Counsel for the Defendant as to the penalty provided by Arkansas Statutes Annotated, Section 82-2617 for the sale of DL Amphetamines; that a representative of the Arkansas State Health Department was called to the chambers and specifically asked what classification had been placed on the sale of DL Amphetamines; the representative from the State Health Department stated that DL Amphetamines had been placed in a schedule which contained and provided a penalty of confinement of not less than five (5) years nor more than thirty (30) years, or a fine of not more than Twenty-Five Thousand Dollars ($25,000.00), or both; that the Court, the Prosecuting Attorney and the attorney for the Defendant accepted such statement made by the said State Health Officer and the Jury was so instructed. After deliberation, the jury returned a verdict finding the Defendant guilty of the offense charged and fixing his punishment at twelve (12) years in the Arkansas State Penitentiary. That subsequent to such verdict, the attorney for the Defendant determined and advised the Court that the jury had been mis-instructed as to the proper penalty provided by law, and duly filed his Motion for a new trial. Further, the Court finds that no timely objection was made by the attorney for the Defendant to the instruction as given by the Court and that pursuant to the provisions of Arkansas Statutes Annotated Section 43-2308 the Court is bound only to enter Judgment and pronounce sentence according to the highest limit prescribed by law for the particular offense; the Court further finds that the proper penalty for the offense for which the Defendant was being tried is confinement for a period of not less than three (3) years and not more than ten (10) years, or a fine of not more than Fifteen Thousand Dollars ($15,000.00), or both, and therefore the Court should reduce the penalty assessed against this Defendant by the jury from twelve (12) years to ten (10) years in the Arkansas State Penitentiary and the Motion filed herein should be denied. ”
The trial court was incorrect in holding Ark. Stat. Ann. § 43-2308 (Repl. 1964), applicable to the situation here involved. Here the error in the classification of the crime by the trial court applied to both the minimum and maximum penalties under the law, and since the jury arrived at neither the minimum nor the maximum as given bybhe trial court’s instructions, the only manner in which all prejudice to the appellant can be removed, beyond any doubt, is by reducing the penalty to the minimum prescribed by law. See McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). Should the Attorney General, within 17 days, elect to consent to a reduction of the sentence to the minimum of three years, the judgment will be affirmed as modified. Otherwise, the judgment must be reversed and the cause remanded for new trial.
The State, to sustain the action of the trial court in reducing the sentence to the highest allowed by law, suggests that, in the absence of an objection to the trial court’s instruction, the trial court did not commit error. However, the trial court’s order reflects that counsel made their position known and that, in effect, the trial court permitted the State’s expert witness, who professed to be an expert on the classification of drugs, to overrule the appellant’s objections. Consequently, the State’s position is not well taken.
2. Appellant Estes’ contention that the evidence is insufficient to convict him has no merit. The proof on the part of the undercover agent was that when Carl Taylor asked if Colburn and Estes had some “White-Cross,” Cletes Estes then said they had some and asked the undercover agent if he wanted some. Of course, that evidence together with the evidence that Estes and Colburn were together when the delivery was made was sufficient to sustain the conviction, if the jury believed such evidence.
3. The trial court did not err in admitting in evidence the fact that Estes told the undercover agent that he and Colburn would have some marijuana later in the week. Such evidence was permissible to show that Estes was dealing in drugs in general.
Affirmed as modified, if the Attorney General enters a consent to the reduction within 17 days. Otherwise, reversed and remanded. | [
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Frank Holt, Justice.
This is an action to quiet title. Appellants, the natural children of A. W. Baker, deceased, petitioned the chancellor to declare them the owners of an undivided 6/7ths interest in property owned by their father. The chancellor held that Baker owned this property with his wife as tenants by the entirety. Therefore, upon Baker’s death in 1951 the property went to his wife rather than to Baker’s heirs. Mrs. Baker died in 1966 leaving her son, appellee Westmoreland, as her sole heir. Appellants assert for reversal there is insufficient evidence to support the chancellor’s finding of a tenancy by the entirety.
The record reflects that Baker, individually, obtained title to 79 acres of farm land in 1936. In 1946, Baker and his wife, Emma, as joint grantors, conveyed this property by warranty deed to Ernest Mangum. By the granting clause, a vendor’s lien was retained for the unpaid balance evidenced by notes payable to the grantors. Upon default, the granting clause provided “that the Grantors at their option” could declare the entire debt due. The Mangums defaulted and in 1947 conveyed the property to “A. W. Baker and Emma Baker, Man & Wife, and unto his heirs ***.” The granting clause also contained this significant language. “(The object of this deed is to return title to Grantee herein, without foreclosure for balance of purchase price.)”
The only issue is whether the Mangums’ deed conveyed a tenancy by the entirety to the Bakers. Appellant relies upon Harmon v. Thompson, 223 Ark. 10, 263 S.W. 2d 903 (1954). There we held that a grant to “Dave Harmon and Gertie Harmon and unto his heirs and assigns forever” did not convey a tenancy by the entirety. The facts in that case, however, are peculiarly different from these in the case at bar. There the word “his” was typed into the printed form deed. This was erased and the word “theirs” typed in. Then “theirs” was inked out and the word “his” inserted by writing. We held that this written insertion was deliberate and could not be treated as a mere inadvertence.
The later case of Redmon v. Hill, 233 Ark. 45, 342 S.W. 2d 410 (1961), distinguished Harmon v. Thompson, supra. In Redmon the granting clause of the deed conveyed property to Duncan Hill and Emma Hill, and **** unto his heirs and assigns ****.” There we said:
In two important respects the facts in the Harmon case are easily distinguishable from the facts in the case under consideration. One, in the cited case it is clear, because of the erasures and changes, that the word “his” was deliberately and purposely used instead of the word “their.” Such is not the case here. Two, in the cited case the all important fact of intent is not definitely shown, as it is in this case.
In Redmon v. Hill, supra, there was testimony that Hill asked that the deed be made to him and his wife. Likewise, in the case at bar, Mrs. Mangum’s uncontradicted testimony is that the deed was made according to Baker’s direction. There is no indication that the use of the word “his” was purposely and deliberately done to alter the intent in the deed. Additionally, the conveyance here from the Mangums to the Bakers, as grantees, includes the phrase “Man and Wife.” Further, the reconveyance was specifically noted as being for the purpose of cancellation of their notes to Baker and his wife, Emma, when they jointly conveyed the property to the Mangums. Although the Mangum deed recites the purpose of the conveyance “is to return title to grantee herein” that does not negate the fact that the “grantee” in the singular could include Baker and his wife since both were the grantors in their deed to the Mangums. We hold that Redmon is applicable and controlling in the case at bar.
Neither do we consider Baker’s 1936 unprobated will nor who paid the taxes on the property as being of any significance in determining the pivotal issue before us, which is the construction of the reconveyance by the Mangum deed. The chancellor’s interpretation is in accord with our well established rule of property. Mills Heirs v. Wylie, 250 Ark. 703, 466 S.W. 2d 937 (1971).
Affirmed. | [
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Joe D. Woodward, Special Justice.
On December 26, 1973, the Appellee, Arkansas Savings and Loan Board, granted the application of Home Savings and Loan Association to begin business as a savings and loan association in the City of Mountain Home.
The Appellant, First State Building and Loan Association of Mountain Home was a protestant to the application and appealed the finding of the Board to the Pulaski Circuit Court under the provisions of the Administrative Procedures Act.
The Circuit Court remanded the matter on April 3, 1974, to the Board for the Board to incorporate in its order “finding of fact and conclusions of law, separately stated” upon which the Order of the Board was based.
Thereafter on April 8, 1974, the Board issued a new Order which was affirmed by the Circuit Court.
The Appellant relies on two points for reversal. The first is that the findings of fact made by the Board in its Order of April 8, 1974, again failed to meet the requirements of Ark. Stat. Ann. Sec. 5-710, Supp. 1973.
The second point is that the Order of the Board approving Appellee’s application was not supported by substantial evidence of record.
The record in this case is voluminous. The Hearing before the Board was protracted. Many detailed and complicated exhibits are in the record. The testimony of some eighty-seven witnesses is spread out through several volumes of testimony.
This Court has recognized that a threshold question exists in cases brought here from administrative agencies and that question is: “Has the agency followed the dictates of Ark. Stat. Ann., Sec. 510 (Supp. 1973) by providing the concise and explicit findings of fact and conclusions of law separately stated in its Order.”
Professor Davis, in his Administrative Law Treatise (1968, Sec. 16.05) summarizes the reasoning underlying the law which requires explicit and concise findings of fact in administrative agency orders:
“The reasons have to do with facilitating judicial review, avoiding judicial usurpation of administrative functions, assuring more careful administrative consideration,helping parties plan for rehearings and judicial review and keeping agencies within their jurisdiction. ”
The Board in this case did not state the underlying facts upon which the Order was based in a concise and explicit manner at the first Hearing (December 26, 1973) nor did they do so at the second Hearing (April 8, 1974). The Board simply based its first Order on the statutory language of Ark. Stat. Ann., Sec. 67-1824 (Repl. 1966) and merely rearranged that wording in its second Order (April 8, 1974). We do not know, from the Order, what specific facts the Board relied upon in granting the application and we will not attempt to supply the deficiencies in an administrative Order by weighing evidence which is the responsibility of the administrative agencies.
The Appellee argues that Appellant should have come forward after the Circuit Court remanded the Order on April 3, 1974, to assist in rewriting the Order or to make its objections known at that time. The Appellee contends that having not done so, the Appellant waived the matter.
This Court held in Arkansas Savings and Loan Board et al v. Central Arkansas Savings and Loan, 256 Ark. 846 (1974) that the requirements of Ark. Stat. Ann., Sec. 5-710, Supp. 1973 are primarily for the benefit of the reviewing Court and cannot be waived by the parties.
We are, therefore, unable to answer the threshold question in the affirmative and need not reach the second question of whether the Order was based upon substantial evidence at this time.
The judgment is reversed and the cause remanded through the Circuit Court to the Board for such further proceedings as may be necessary.
Conley Byrd, J., not participating. | [
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