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Carleton Harris, Chief Justice.
This is a child custody case. On July 16, 1963, Daniel L. Mabry, appellee herein, was granted a divorce on a cross-complaint from his wife, Winona Mabry, and was given custody of the three minor children born to the parties, Danny Mabry Jr., Steven Mabry, and Ronald Mabry. In late 1966, the oldest boy, Danny, ran away from home, and went to live with his mother in Carterville, Illinois. In January, 1967, Mrs. Wilma Mabry, age 64, and mother of Daniel Mabry, and Frances Mabry, sister of Daniel, petitioned the court for custody of Steve and Ronnie, asserting that their son and brother (appellee) had subjected the minor children to repeated and unnecessary whippings, these whippings occurring for ridiculous reasons, and they alleged that great mental damage was being done the children thereby. The petitioners, appellants herein, who live in Jacksonville, Florida, desired that the boys be removed from their present environment, and placed with appellants. Before this petition was heard, Steve also ran away from home and joined his mother and brother. Thereafter, the court conducted a hearing on the petition, and found that as between petitioners and the father, the latter was entitled to the custody of Bonnie. From the decree so entered, appellants bring this appeal.
The two older boys testified that their father would become angry, and whip them with a belt over the entire body. Each had a paper route, and each testified that if he were late getting back from the route, a whipping would be administered, and the same would occur if the boys were late from school. Danny testified that he earned about $40.00 per month on his route, and that his father and stepmother always took the money, leaving him only enough to pay for his lunch. He stated that his father hit him with his fist on one occasion after accusing him of taking drugs. Steven testified that appellee treated him and his brother all right until he remarried, but that after that his father would get very angry, make a “big thing” out of small matters, and would whip them with his belt. “She [referring to stepmother] put him up to it, though.” He also testified that the young boy, Ronnie, had been whipped with a belt.
Emma Lasiter, 88 years of age, and great grandmother of the Mabry children, testified that she had seen bruises on their bodies, including “the print of the whip on them.” Mrs. Lasiter, on one occasion, called the sheriff to her home to view the boys; the officer stated that, as he remembered, there was a skinned place above the left eye on Steve, which the boy said had been placed there by the father.
Wilma Mabry, one of the appellants herein, lives in Jacksonville, Florida, where she is principal of Fair-field School. She testified that she earned about $10,-000.00 per year. Mrs. Mabry had no personal knowledge of what might have happened in the home, acquiring her information from Steve, who, according to the witness, was extremely nervous, upset, and unsure of himself, and she said he cried during the whole time he told her about the situation at home. Dr. Ann R. Poin-dexter, who specializes in pediatrics, and is employed at the Arkansas Children’s Colony, testified as to the effect of home brutality on the mental and physical development of children. She had no personal knowledge of alleged events, expressing her opinion from having read the depositions. Frances Mabry, the other appellant, who lives in the home with her mother, Wilma, testified that she visited her brother (appellee) at his home, and on one occasion, heard him and his wife discussing the fact that Danny had bent his bicycle wheel. She said her brother started hollering at Danny, stating that the latter had taken the bicycle out and bent it on purpose. Miss Mabry said that she defended the boy, asserting that, in her opinion, the weight of the newspapers carried by Danny in the bicycle basket had bent the wheel.
“* * * So when I. said that, Dan tore into me. Said for me to shut my face and go back where I came from, that I had no right to he there. And started wagging his finger in nay face and coming at me. And he had these big blaring eyes, had a sort of glassy look in his eyes. And then he started shoving me backwards three or four times pretty hard and I felt like he was trying to knock me down, although he didn’t. And he more or less turned his temper, this tirade or whatever it was that he’d started on Danny, because I had defended Danny, and he turned it on me.”
Mrs. Delma Turner, whose husband is the uncle of appellee’s first wife, testified that the boys appeared to be emotionally disturbed when they would come to her home, and she said they had told her of their unhappiness. Mrs. Turner testified at length, but most of her testimony related to what had been told her by the younger boy, Steve. Here, again, the witness had no personal knowledge of what had happened in the home, having acquired her information from the boys.
Appellee testified that, as to the bicycle, he had told Danny three times during the week to get the bicycle fixed; on another occasion, an acquaintance advised that the oldest boy had thrown bricks at a horse, cutting a large gash in the animal’s head. A neighbor complained that the boys were throwing rocks at children, and he had punished them for these, and similar offenses. The father testified that they were supposed to get up around 4:00 o’clock as a matter of preparing to go on their paper routes, but he discovered that on one occasion, they had already left the house at 2:00 A.M., and on another occasion, they were gone at 2:30. When he asked as to the reason, their reply was that they were “just riding around town. Just riding around, was all they said, on their bicycles.” Mr. Mabry is vehicle dispatcher at the Little Rock Air Force Base, and he readily stated that he had used a belt on the two larger boys after they “got too big” to be spanked. He denied any brutal whippings, but did say that he accidentally hit Steve in the face, which was caused by the boy squirming and trying' to g’et away from him. As to the paper routes, he testified that he had whipped them for coming in an hour or an hour and a half late. He stated that he had spanked the youngest boy for such incidents as talking in church and playing in the commode. Mrs. (rienda Mabry, appellee’s wife, testified that she loved the hoys and that her husband always tried talking with them before inflicting any whipping. She said that at one time he whipped them for going inside the hospital and drinking cokes instead of coming straight home from their paper routes. She also mentioned that Mr. James Cox, the Gazette agent in Faulkner County, had come to the house on one occasion, because the hoys had not shown up to deliver papers, and he thought they had overslept. As a matter of fact, they had already left, and on returning home, stated “they were riding around looking at some tractors or something.” At another time, Cox came over about 4:30 looking for them, and again, around 5:15. She testified the hoys gave no explanation of what they had been doing.
Mr. Cox testified that he had received “more than average” complaints about the boys delivering the papers late, and he added that they left their employment without ever giving any notice to him that they would not be back.
Appellants point out that this court has stated that the controlling consideration in all custody cases is the child’s-best interest and welfare. Powell v. Woolfolk, 233 Ark. 893, 349 S. W. 2d 657, and cases cited therein. We agree that appellants, in that respect, state the law correctly, but the difficulty in the present instance is in determining just what is for the best interest of the child.
The entire argument of appellants is based on the alleged brutality of the father toward the two older boys. Of course, no normal human being would condone unmerciful or brutal beatings of a minor, but on the other hand, we think unquestionably that a parent has the right to properly discipline his child. Those who testified to personal knowledge of brutality were the two older boys themselves, and the great grandmother. The other witnesses based their opinions largely on what they had been told by Danny and Steve. The boys expressed resentment over several matters, Danny stating that he would rather live with his mother because he received “better treatment * * *. She'will let us have any money we make, and will let us go places, and she doesn’t whip us all the time like he did. In fact, she’s never whipped us.” Steve testified that he preferred to live with his grandfather and stepgrandmother, Ron and Gerrie Mabry (who are not parties or witnesses in this case). “They treat me nice, but when I do something bad wrong, they don’t whip me but they scold me. It is better than getting a whipping.” There is nothing unusual in this testimony. Probably most teenage boys would prefer to keep their money or be “scolded” rather than whipped when they do something “bad wrong.” The testimony of the great grandmother was to the effect that she had seen bruises and marks on the boys (which they said were caused by their father whipping them) but the testimony of the sheriff, who was called to the home by Mrs. Lasiter does not indicate that he was very concerned over her charge of brutal treatment. It does appear that the boys were, on some occasions mentioned in the testimony, due to be disciplined.
The strongest circumstance for appellants in this case is that the petition is filed by the mother (and sister) of appellee — and mothers normally “stand up” for their children. Still, there are instances of litigation between parents and their children, and when this happens, feelings become intense.
In Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500, we used language that is quite pertinent to this case:
“The chancellor saw and heard the witnesses, and all the parties to the litigation, and evidently saw the child, as the testimony reflects she was present. We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i. e., to observe these litigants and determine from their manner, as well as their testimony, their apparent interest and affection, or lack of affection for the child. ’ ’
In fact, that case was similar in another respect to the present litigation, in that the dispute over custody was between a father and a stepmother on one side, and grandparents on the other. We affirmed the Chancellor who awarded the child to the grandparents for a period of six months in one of the few instances where this has been done. However, the facts were vastly different, nine witnesses, seven of them disinterested, testifying that the child had not been taken care of, some stating that the little girl “looked starved * * * her little ribs sticking out,” one testifying that she was so poor and skinny that he did not recognize her; the others testified to similar facts. In a four to three opinion, this court affirmed the Chancellor’s action in giving the custody to the grandparents for six months, but we said:
‘ ‘ Our thinking in this matter is influenced to a great extent by the fact that the order is only temporary.”
Of course, all. things being equal, a parent has, and should have, paramount rights to the custody of his or her child.
In summary, we cannot say that the Chancellor’s finding was clearly against the preponderance of the evidence, and we are unwilling to substitute our judgment for that of the trial court.
Affirmed.
At the time of the hearing on this petition, Danny was 16 years of age, Steve, 13, and Ronnie, 4.
The court also found: “As to the two older children, Danny, age 16, and Steve, age 13, no decision is made, and the petition is dismissed. This is done because the children are not in the State of Arkansas and are not in the custody of either petitioners or respondent. The proof shows that the children are now with their mother, Winona Mabry, in Carterville, Illinois. A decree of this court fixing custody between the parties to the present action would be meaningless because Winona Mabry is not a party, the children are not before the court, and in any event, the court of whatever state the children may be in at the time will determine the question of custody based upon conditions at the time of such determination.”
By deposition.
He said, however, that the mark on Steve observed by the sheriff was caused by the older brother (Danny) hitting Steve in the eye with a clothes hanger. | [
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Conley Byrd, Justice.
This is a proceeding under Criminal Procedure Rule No. 1, 239 Ark. 850a. Appellant’s conviction, resulting in consecutive sentences of 21 years for robbery and 7 years for burglary, was originally affirmed by this court in 1955. See Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887 (1955). In this post-conviction procedure appellant offered no additional proof, but relied on the record previously made. For reversal of the trial court’s order refusing him any relief, he relies on the following points.
I. The petition for writ of habeas corpus should have been granted because, in the original trial, the court erroneously permitted the state to introduce evidence of appellant’s previous convictions in the state’s case in chief.
II. The petition for writ of habeas corpus should have been granted because the penitentiary commitment does not specify which of appellant’s consecutive sentences is to run first.
I
Appellant contends that we should give retroactive effect to our decision in Miller v. State, 239 Ark. 836, 394 S. W. 2d 601 (1965). In Miller, reversing our former procedure, we held that the prosecuting attorney could not, on a trial of the primary charge, inform the jury of prior convictions for purposes, of invoking the additional penalties of the habitual criminal statute, Ark. Stat. Ann. § 43-2328 (Repl. 1964). This holding has been applied retroactively to cases then in the ordinary appellate process. Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (1966); Francis v. City of Benton, 240 Ark. 738, 401 S. W. 2d 729 (1966). However, we do not feel that we should apply it retroactively to cases finally adjudicated and in which the appellate process has been completed. Other courts with the same problem have arrived at similar conclusions. Linkletter v. Walker, 381 U. S. 618 (1965); Tehan v. Shott, 382 U. S. 406 (1966).
The procedure under the habitual criminal statute is now controlled by Act 639 of 1967.
II.
We find appellant’s second point to be without merit. The commitment originally issued hy the trial court directed that appellant he “. . . delivered to the penitentiary authorities . . . and there confined at hard labor for the period of 21 years for robbery and 7 years for burglary, both sentences to run consecutively . . .” On this record we had no trouble on the original appeal in determining that the sentences were consecutive and that the 21-year sentence was to be served before the 7-year sentence. The determination of which sentence shall run first is a matter within the discretion of the trial court and we find no abuse of it in this case. Ark. Stat. Ann. §§ 43-2311-2312 (Repl. 1964).
Affirmed. | [
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Carleton Harris, Chief Justice.
This is a Workmen’s Compensation case. Mallie Craig, age 55, an employee of Georgia-Pacific Corporation and its predeces sor, was a crew leader of the bridge crew, operating a pile driver on the job, and acting as foreman when the regular foreman was absent. His normal working hours were 7:00 A.M. to 4:30 P.M. On March 31, 1966, he began his work at the usual time, worked throughout the day, and was on his way back to Crossett to .make the 4:30 P.M. quitting time, when he was met by the foreman, and requested to go to a forest fire in Drew County, approximately twenty-five miles away. He arrived there between 5:30 and 6:00 P.M., and left after the fire was extinguished to return home. He arrived at his residence sometime before 11:00 P.M., soon thereafter became ill, and was taken to the Crossett Health Center. At 2:40 A.M., on April 1, he was pronounced dead by Dr. W. A. Regnier, a physician of Crossett. The death certificate, signed by the doctor, stated that Craig’s death was caused by a massive coronary occlusion, due to arteriosclerosis. Mrs. Elsie Craig, the widow, filed a claim with the Arkansas Workmen’s Compensation Commission on behalf of herself and her minor daughter, Vicki. Dr. Regnier testified at a hearing before the referee, and at the conclusion of the hearing, compensation was awarded. Appellant appealed to the full commission, and there offered the deposition of Dr. Drew F. Agar, a Little Rock internist. The commlsson affirmed the referee’s award, and on appea1 +o the Circuit Court of Ashley County, the commission was affirmed. From the judgment so entered, appellant brings this appeal.
Fellow workers on the bridge crew testified relative to their normal duties, and also the work required in extinguishing the fire. No one testified that he observed Craig engaging in any particularly strenuous activity. Mrs. Craig testified that her husband had never missed more than one day of work due to sickness for the nineteen years that he had worked for the company. She said, however, that he had gone to Dr. Regnier; that “he was bothered with his heart, and he would get awfully tired, and he said the truck would just about shake him to death, especially when they’d be on those long hauls down in Louisiana, lots of times way up in Drew County.” Claimant testified that on March 31, her husband arrived home about 11:00 P.M., dirty and smutty, and went straight to the bathroom to take a bath. When she advised that his supper was ready, he replied that he did not want any supper, that he had already eaten a sandwich and drunk a coke, and that his chest was hurting. She stated that he thought it was probably indigestion caused by the sandwich. Shortly thereafter, he went to bed, but got up within a few minutes, walking back and forth, and she asked if she should call a doctor. He declined, saying that “maybe it will wear off in a few minutes.” After a while, Craig remarked that he was ‘ ‘ deathly sick. ’ ’ Mrs. Craig testified:
“* * # And I just ran out to the utility room and got a little ole plastic pail we had out there and ran back into the bed; then I ran to the bathroom and got a wash cloth and when I got back to him I started to bathe his face and when I did he just slumped over to the floor. Well, I called Don, my son, he was sleeping or had laid down up in the front bedroom, he hadn’t gone to sleep, and I run in there and called him and of course we called Doctor Regnier and called the ambulance and carried him to the hospital but he was dead on arrival. I found out later that he died in the bedroom, that he didn’t live to get on the stretcher.”
Dr. Regnier testified that in October of 1964, Craig had complained to him that his heart was bothering him; that Craig’s death was due to a massive coronary occlusion due to arteriosclerosis from which Craig had suffered for about five years. He stated that it was his opinion that the work performed by Craig from 7:00 A.M. until his return to Crossett was a contributing cause to his death.
Dr. Agar was furnished with a copy of the transcript of the hearing before the referee, and he said that, from the testimony, he could see no causal relation ship between the activity Craig was engaged in and his subsequent demise.
Appellant mentions that there was no evidence that Craig was ill at any time during the day, and that, on leaving his fellow employees to return home after the fire, he stated, “I’ll see you hoys in the morning.” It is pointed out rather vigorously that Dr. Regnier was far from emphatic in his testimony, and that he would only say that the work may have contributed to the attack; further, he would not say that the attack started on the job; also he admitted it was possible that Mr. Craig could have died if he had not worked in a week. Appellant emphasizes that Regnier could not pinpoint any particular work that might have contributed to the attack, nor would he absolutely say that the attack was hastened by the number of hours Mr. Craig worked on the day under discussion. The doctor did say, however, that he did not believe he would have the same opinion if Craig had only worked five hours that day.
It is true'that Dr. Regnier’s testimony is not as positive as that in some other cases that have been before the court, but it does appear that the doctor was being as conscientious as possible in making his answers. It is evident that he held the opinion that the activities of the day, particularly the long hours, hastened the attack. From the cross-examination:
“Q. So you cannot say or not say whether or not the day that he spent was a contributing factor to his death?
A. In my personal opinion I think it did.”
Of course, in this type of case, a doctor can hardly be exact in his testimony. In fact, there are many such instances in the medical field. In U. S. Fidelity and Guaranty Company v. Dorman, 232 Ark. 749, 340 S. W. 2d 266, this court, quoting from an earlier case, said:
“ ‘Appellant insists that Dr. Monroe’s testimony is speculative, since he admitted the possibility that death was due to some other cause. But medicine, like the law is not an exact science. If mathematical certainty were required, a surgeon would act at his peril in advising his patient to undergo an operation. The law does not compel adherence to a standard so precise. The effect of Dr. Monroe’s testimony is that in his opinion the most probable cause of death was a pulmonary embolism attributable to the fractured leg.’ ”
Here, though unable to pinpoint the work, or the exact number of overtime hours that would have contributed to the heart attack, Dr. Regnier, like Dr. Agar, gave his best opinion after acquainting himself with the history and the facts deemed pertinent. Doctors are experts in their field, and as pointed out in Dorman, it is for that reason that they are permitted to express an opinion.
The commission took the view of Dr. Regnier, and, when all the facts are considered, we are not willing to say that there was no substantial evidence to support the award.
Affirmed.
American Life Insurance Company v. Moore, 216 Ark. 44, 223 S. W. 2d 1019. | [
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CakletoN Harris, Chief Justice.
Appellant, Carl Widmer, brings this appeal from the judgment entered by the Sebastian County Circuit Court on a credit card account, after an original trial in the Fort Smith Municipal Court from which an adverse judgment was appealed. The Circuit Court tried the case on stipulated facts. It is here contended, first, that service had upon appellant was void on its face, and second, that there was accord and satisfaction. The first point is controlled by our opinion in Widmer v. Price Oil Co. Inc., Case No. 4424, which is handed down this day.
Gibble Oil Company instituted a suit on November 23, 1966, asking judgment for $67.80, plus costs and interest, from the appellant. On November 30, 1966, Widmer sent his check to appellee in the amount of $9.01,- the cheek being marked, “Full payment of all accounts to date.” Gibble then cashed the check. This is the only factual difference between this case and Widmer v. Price Oil Company, for in that case, the check sent in a less amount [than that owed) was not cashed. This fact, however, is immaterial. As pointed out in Price, there must be a disputed amount involved, and a consent to accept less than that amount in settlement of the whole before there can be an accord and satisfaction. The authorities cited there are controlling here, and one cited case, Nordlinger v. Libow, 240 N. Y. S. 193, did involve the creditor’s cashing a check from the debtor for a lesser amount than was due, and marked, “Full settlement of any and all claims.” This holding is in accord with 6 Corbin on Contracts, Section 1277, Page 123, where it is said:
“It is not enough for the debtor merely to write on >a voucher or on his check such words as ‘in full payment’ or ‘to balance account,’ where there has been no such dispute or antecedent discussion as to give reasonable notice to the creditor that the check is being tendered as full satisfaction.”
In addition, we have held that a dispute or controversy about the amount of an account must be made in good faith, i. e., there mast be a bona fide dispute. In Massachusetts Mutual Life Insurance Company v. People’s Loan and Investment Company, 191 Ark. 982, this court, quoting 1 C. J. 554, said:
“ ‘While it is not necessary that the dispute or controversy should he well founded, it is necessary that it should be made in good faith.’ ”
As stated in Price, there is no evidence that Widmer denies that he actually owed the full amount demanded. In fact, it is stipulated that “as of November 23, 1966, the defendant Carl Widmer owed the amount of $67.80 to the Gibble Oil Company as result of credit card purchases made by said defendant from the plaintiff.” Further, that “prior to November 30, 1966 [the sending of the check], no communication was exchanged between plaintiff, G-ibble Oil Company, and defendant, Carl Widmer, in regard to the correctness or validity of said account.”
Affirmed. | [
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John A. Fogleman, Justice.
Appellant seeks to reverse the judgment of the probate court in favor of a claimant for an indebtedness for construction work done by appellee for appellant’s' decedent, Bryan J. Hilton, because of the failure of the probate judge to exclude certain testimony because of the “dead man’s statute*” The key issue was whether the claim had been barred by the statute of limitations. This depended on a deter mination whether the statute was tolled by payments made by the decedent in his lifetime. Appellee offered in support of his position his statement of account, admittedly prepared after the death of decedent, which was attached to his proof of claim. He also offered as his business record a small notebook with one page showing payments made by the decedent. He also testified about these alleged payments over the objection of appellant. Appellee contends that even if the “dead man’s statute” is applicable, appellant waived its application.
When claimant’s attorney was examining him with reference to payments made by Hilton, as shown by the statement attached to the claim, appellant based his objection on the statute of limitations only. Appellee had answered, after the objection was overruled, that the payments made on the account by Hilton were shown on this sheet.
When the question was reworded to ask if those payments were made during Hilton’s lifetime, appellant objected to any statement by the witness in regard to payments made by decedent. The objection was overruled. Appellee then identified and offered the small notebook which he said he kept in his own handwriting as a permanent record. Appellant’s objection that the alleged business record was “self-serving, irrelevant and immaterial ’ ’ was overruled. In addition to the items of the account, this showed the following:
“Payments on Bryan Hilton
Accts.
$100.00 54
$200.00 56
$200.00 58
$200.00 61
$ 75.00 62”
Thereafter appellant’s attorney cross-examined ap-pellee as follows:
“Q. You prepared this after Mr. Hilton’s death? (Cl. No. 1)
A. Yes.
Q. I also ask you to examine this sheet here that is alleged to he a copy of an account reflecting certain credits?
A. Yes.
Q. When was that prepared?
A. Well, at each year.
Q. You prepared this each year?
A. I put it in my book what I had received from him during that year on these contracts.
You prepared this each year? 6*
Each year, yes. <h
Q. I’m talking about this sheet of paper itself, this particular one?
A. That was prepared when I filed the claim.
Q. When you filed the claim?
A. Yes.
Q. I see.
A. Or shortly before.
And Mr. Cheatham, you allege here that Mr. Hilton paid you certain payments, did he pay you any payments by check, or how were these payments made? G>
All of them except one was by check. ¡>
Was by check? <p
By check.
Do you know what those checks, where they were drawn and on what hank? «O
No, I don’t know exactly. Some bank in Fay-etteville, but I don’t—
Did he pay them to you directly? <©
How? [>
Did he pay them to you directly? <©
I’m a little hard of hearing. f>
Did he pay those payments to you directly? <p
Sometimes — some by mail and some directly. I don’t know which is which. f>
He sent some of those in the mail? <©
Yes. f>
Now, do you recall which ones he sent by mail? <©
All of them except the last one he paid me cash, I believe it was all by mail, I’m not sure that they were all by mail, but part of them were. ¡>
The last1 one was made by cash? <D
Yes. t»
Q. Do you. remember, Mr. Cheatham, where this alleged cash payment was made1?
A. Where it was made?
Q. Yes.
A. It was made in Lincoln.
Q. There in Lincoln, Arkansas.”
Thereafter appellant renewed his objection to the sheet attached to the proof of claim only on the basis that it was prepared after Hilton’s death.
There can no longer be any question that the effect of this statute can be waived by the action of a party in whose favor it might be invoked. Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9; Harris v. Whitworth, 213 Ark. 480, 211 S. W. 2d 101. The incompetency of the witness is waived where timely objection is not made. Lisko v. Hicks, supra; Brickey v. Sullivan, 208 Ark. 590, 187 S. W. 2d 1; Carlson v. Carlson, 224 Ark. 284, 273 S. W. 2d 542. Appellee argues .that appellant’s objection was untimely. We find that, even if it can be said that appellant made sufficient objection to the testimony to raise this question, his subsequent actions constituted a waiver of the statute. The incompetency is also waived, even though timely objection was interposed, when the same testimony, in effect, to which objection was made is brought out on cross-examination. Harris v. Harris, 225 Ark. 958, 286 S. W. 2d 849. His failure to object to the notebook on the ground now asserted and his cross-examination on the same subject bringing out virtually the same information as elicited on direct examination, particularly as to the last payment alleged to have been made by the decedent, certainly constituted a waiver.
We are not unaware of such cases as Johnson v. Murphy, 204 Ark. 980, 166 S. W. 2d 9; Campbell v. Hammond, 203 Ark. 130, 156 S. W. 2d 75; Brittian v. McKim, 204 Ark. 647, 164 S. W. 2d 435; Smart v. Owen, 208 Ark. 662, 187 S. W. 2d 312. All of these cases were based on the then existing rule that no objection was necessary, in chancery practice, to preserve an objection on this ground since this court tried such cases de novo and would consider only competent testimony. This rule was abandoned in Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495. Although the rule had been applied in probate cases after the adoption of Amendment 24, it was held to be no longer applicable after the Umberger decision. Carlson v. Carlson, 224 Ark. 284, 273 S. W. 2d 542.
The judgment is affirmed.
Byrd, J., dissents.
This was the statement and supporting document attached to his claim. | [
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George Rose Smith, Justice.
The one question in this case is whether the plaintiff-appellant bank, in lending $1,200 to Denzil Karnes upon the security of crops to be grown by him during the ensuing year, inserted in its combined Financing Statement and Security Agreement a description of the crops sufficient to put third persons on notice under the Uniform Commercial Code. The chancellor held the description to be fatally defective and accordingly dismissed the bank’s suit for conversion against the appellee gin company, which had bought the cotton crop from Karnes.
This is the description used in the Financing Statement and Security Agreement: “'CROPS. All of the following crops to be planted or growing within one year from the date hereof on the lands hereinafter described: 7 acres of cotton and 53 acres of soybeans to be produced on the lands of S. E. Karnes; 11.6 acres of cotton and 50 acres of soybeans to be produced on the lands of Mary Gilbee; 4½ acres of cotton and 11 acres of soybeans to be produced on the lands of George Nixon; all of the above crops to be produced in Clay County, Arkansas during the year 1965.”
We agree with the chancellor’s conclusion. With respect to crops the Code requires, both as to the financing statement and as to the security agreement, that there be a description of the land that is involved. Ark. Stat. Ann. §§ 85-9-203 and 85-9-402 (Add. 1961). The description “is sufficient whether or not it is specific if it reasonably identifies what is described.” Section 85-9-110. The Commissioners’ Comment to the latter section states: “The test of sufficiency of a description laid down by this Section is that the description do the job assigned to it — that it make possible the identification of the thing described.”
Here the description referred merely to seven acres of cotton to be produced on the lands of S. E. Karnes (together with two other similar references). Neither the security instrument nor the proof adduced at the trial sheds any light whatever upon the questions (a) whether Denzil grew exactly seven acres of cotton on the S. E. Karnes land in 1965 and (&) whether anyone else was also growing cotton upon the S. E. Karnes land. We need not speculate upon what might hare been the posture of the case if both these possibilities had been explained, for that is not the situation before us.
X>f course we do not cite as controlling authority decisions of this court that were handed down many years before the enactment of the Commercial Code. Yet we have no hesitancy in relying upon such decisions when they help us to decide whether, in the language of the Code, a description “reasonably identifies what is described.” We have said more than once that “a mortgage of a specified number of articles out of a larger number will not be allowed to prevail, unless it furnishes the data for separating the property intended to be mortgaged from the mass.” Krone & Co. v. Phelps, 43 Ark. 350 (1884): Dodds v. Neel, 41 Ark. 70 (1883). That principle is so reasonable and so plainly applicable to the case at hand that we see nothing to be accomplished by a more extended discussion of the matter.
Affirmed. | [
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Conley Byrd, Justice.
Appellant Solomon Jerome Smith Jr.’s appeal from an order of the trial court overruling his demurer to a counterclaim filed against him by appellee Billy A. Puterbaugh, in the nature of an action for malicious abuse of process, is dismissed for lack of an appealable order. Coffelt v. Gordon, 238 Ark. 974, 385 S. W. 2d 939 (1965). | [
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] |
Paul Ward, Justice.
Appellants, Willie Joe Childs, Frankie Matthews, and Tommy Matthews, charged with stealing $500 from Kroger Stores, were convicted of grand larceny on December 5, 1966 and sentenced to serve nine years in the penitentiary.
There is no contention by appellants here that they did not commit the crime but they seek a reversal based solely on the grounds that the trial court committed three separate errors during the process of the trial.
We have carefully examined each of the alleged errors and, as explained hereafter, find no merit in any of them.
One. It is first urged that the court erred in admitting in evidence the confession made by appellants “without the benefit of counsel”.
The undisputed testimony of the State Police Investigators (to whom the admissions of guilt were made by Tommy and Frankie Matthews) is that appellants were advised of their rights to have an attorney and to refuse to answer questions, and that if they did make any admission of guilt it might be used against them.
Appellants, for a reversal, rely on Miranda v. Arizona, 384 U. S. 436, citing the following statement:
“If an individual held for interrogation by a law enforcement officer indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. ’ ’
At no time did Tommy or Frankie Matthews in any way indicate they wanted to consult with an attorney.
With reference to Childs’ confession the situation was different. Bill Mitchell (a criminal investigator) testified:
“I advised him that he didn’t have to tell me anything unless he had an attorney present and that if he did tell me something it might be used against him. That if he didn’t have funds for an attorney I would be glad to get him one.”
After a conference in chambers between the court and the attorneys the witness further testified:
“Q. When you asked Willie Joe Childs whether or not he wanted an attorney, what was his reply?
“A. He said that he did, and he agreed to go ahead and talk to me.
"Q. He agreed to go ahead and talk to you?
"A. Yes, sir.
"Q. After you asked him if he wanted an attorney and you advised him of his other rights you have outlined?
“A. Yes, sir.”
Following the above the witness testified to what Childs told him.
Again, no objection was made to the above testimony, and no exception was saved. Thus, if it be admitted for the purpose of this opinion that the court erred in allowing the confessions in evidence, such cannot be reviewed on appeal. Criner v. State, 236 Ark. 220, 365 S. W. 2d 252 and Norman v. State, 236 Ark. 476, 366 S. W. 2d 891.
Also, we point out our holding in the case of Slaughter & Scott v. State, 240 Ark. 471, 400 S. W. 2d 267, where we said:
“However, this is a personal right and the accused may knowingly and intelligently waive counsel either at a pretrial stage or at the trial.”
Two. It is next contended that the conrt erred in allowing the state to introduce testimony showing appellants were “habitual and consistent criminals”.
The question in issue arose in this manner. After the State Investigator had testified at some length regarding his connection with the investigation of the case, he made this statement: “I advised both subjects [Mat-thewses] of their rights, of their right to counsel, of their rights under the Fifth Amendment to the Constitution, and during the interview were advised that they had committed a till tap . . . .”
Thereupon appellants’ attorney objected “. . .unless he can show they had an attorney present when they made the statement”. The trial court overruled the objection and exceptions were saved by appellant.
A “till tap”, as explained by the State Investigator, is where one person attracts the attention of the guardian of the “till” while his accomplice takes the money. In other words, that is one way of committing larceny to which these appellants confessed. We find no reversible error for the reason, as previously pointed out, the Matthewses at no time requested an attorney although they were fully advised of their right to have one.
Three. Finally, appellants contend the trial court committed reversible error in refusing to declare a mistrial because of a certain statement made by the State’s Attorney in his closing argument to the jury. The essence of the statement was that the defendants do not live in the county, ‘ ‘ they came in here. They stole somebody else’s money, money that other people worked hard for. All you folks worked hard for your money. They didn’t — They don’t; They won’t. Send them to the Arkansas Penitentiary'for 21 years”.
We find no reversible error. The jurors were evidently not'too much impressed with the argument — they gave the defendants nine years and not twenty one. No objection was made to the argument at the time, but only after the jury had- announced its verdict. Therefore the trial court had no opportunity to admonish the jury, even had it been necessary to do so and we don’t think it was. In the case of Reynolds v. State, 220 Ark. 188, 246 S. W. 2d 724, we find his statement:
“Our rule is that we do ‘not reverse for the mere expression of opinion of counsel in their argument before juries, unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect’ ”.
To the same effect see Freeman v. State, 238 Ark. 804 (p. 808), 385 S. W. 2d 156.
Affirmed.
Fogleman, J., concurs.
Byrd and Brown, JJ., dissent. | [
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Lyle Brown, Justice.
Appellant, The Downtowner Corporation, based at Memphis, Tennessee, brought this suit to recover on an alleged implied contract existing between Downtowner and appellee, Commonwealth Securities Corporation of Pine Bluff. Whether or not an implied contract in fact was created between the parties is the determining issue before us.
In 1962 Downtowner entered into a licensing agreement with Franklin D. Keith and Robert C. Lowther. That agreement gave the licensees the right to nse the trade name, mark, and design of Downtowner in the operation of a new motel to be constructed by licensees in Pine Bluff. For that privilege, licensees agreed to pay ten cents per day per motel room as a royalty and five cents per day for advertising expenses. There was also a provision for the payment of sign rentals. Licensees also committed themselves to purchase from licensor, or its subsidiaries, practically every item needed in the day-to-day operation of a modern motel. These need not be here itemized but the items of royalty fees, payment for advertising, and for sign rentals are important because recovery is sought for them.
Keith and Lowther proceeded to construct a motor inn of 91 rental units and, as authorized in the licensing agreement, operated under the name of Downtowner Motor Inn. The inn was constructed on land owned by Commonwealth, a long-term lease having been executed between Keith, Lowther, and Commonwealth. The lease payments were subrogated to the construction financing furnished by a savings and loan association. Keith and Lowther became heavily indebted by 1965 to numerous creditors in Pine Bluff and to the parent Down-towner in Memphis. In June of that year, Keith and Lowther quitclaimed all their interest (except the licensing agreement, which was non-assignable) to Commonwealth and ostensibly went to Louisiana.
It was Commonwealth’s decision that the interests of all creditors would best be served if the ‘ ‘ doors could be kept open” until the property could be leased or sold to some experienced and reliable operator. Commonwealth retained Keith’s and Lowther’s manager. The president and secretary of Commonwealth, inexperienced in the hotel or motel business, took the responsibility of looking after financial affairs as best they could.
It was thought wise to first contact Downtowner in Memphis. It was desired that Downtowner purchase the property, or in the alternative, enter into a managerial arrangement. A meeting was set np with R. L. Kirkpatrick, executive vice-president of Downtowner, for July 1, 1965. This was only seven days after Commonwealth had taken over the operation. P. R. Clark, Commonwealth’s secretary, and the innkeeper, represented Commonwealth at the meeting in Memphis.
The Memphis meeting started a series of contacts and negotiations which continued until February 1966. By that time it appeared that a satisfactory arrangement could not he consummated between the parties. During the interim, Commonwealth had purchased and paid for various Downtowner operating supplies and in most respects operated as if it were a part of the Down-towner chain. Late in February 1966, Downtowner notified Commonwealth to remove all evidence of the Down-towner trademark which appeared on innumerable items used in the daily operations. Commonwealth set about to comply. The name was changed to Down Town Motel. Complaint was registered because of the similarity of that name to “Downtowner.” The name was subsequently changed to “Ambassador Motel.”
Suit was filed on or near March 30, 1966, by Downtowner, seeking royalty and advertising fees for the period beginning with June 23, 1965. Additionally, judgment was sought for sign rental accruals. Since there had been no affirmative commitment by Commonwealth to pay any of these charges, this question arises: was a contract implied in fact between the parties 1 That is the thrust of appellant’s argument.
No definition by this court of an implied contract has been called to our attention. However, we have cases on the subject and the holdings there are consistent with the law to be shortly cited. For example, see Worth James v. P. B. Price Const. Co., 240 Ark. 628, 401 S. W. 2d 206 (1966); Caldwell v. Missouri State Life Insurance Co., 148 Ark. 474, 230 S. W. 566 (1921); and Blake v. Scott, 92 Ark. 46, 121 S. W. 1054 (1909).
Confusion has resulted from the interchangeable use of the terms “implied contract” and “quasi-contract.” Quasi-contracts are hot based on promises to pay or perform. They are obligations which are creatures of the law designed to afford justice. Generally, an indispensable element of a contract, express or implied in fact, is a promise.
“This latter class [implied contracts] consists of obligations arising from mutual agreement and intent to promise but where the agreement and promise have not been expressed in words. Such transactions are true contracts and have sometimes been called contracts implied in fact. The elements requisite for an informal contract, however, are identical whether they are expressly stated or implied in fact.” Williston on Contracts, Third Edition, Section 3 (1957).
Restatement recognizes an exception to the rule that a promise must be oral or written, “or must be inferred wholly or partly from such conduct as justified the promisee in understanding that the promisor intended to make a promise.” Restatement, Contracts, % 5 (1932). That exception is stated in § 72 (2):
“Where the offeree exercises dominion over things which are offered to him, such exercise of dominion in the absence of other circumstances showing a contrary intention is an acceptance. If circumstances indicate that the exercise of dominion is tortious the offeror may at his option treat it as an acceptance, though the offeree manifests an intention not to accept. ’ ’
That exception, however, is not here applicable. It should be noted that the exception is predicated on an offer. No offer, written or oral, was ever made by Down-towner of Memphis to Commonwealth which designated a tender of specific services covered by royalties, fees, and sign rentals. We have previously mentioned the July 1 conference in Memphis. Following that, ten letters were exchanged between the two parties over a period of eight months. An operational vice-president of Downtowner, and possibly another official, went to Pine Bluff and visited the property. At no time were royalties, fees, or sign rentals mentioned to Commonwealth officials. It is true that appellant made some monthly hillings addressed “Downtowner of Pine Bluff.” They were not addressed to Commonwealth. Surely, had Downtowner of Memphis been honestly looking to Commonwealth for these hillings, Downtowner would have mentioned the alleged monthly delinquencies to Commonwealth in at least one of the many letters written Commonwealth. Moreover, as' late as January 1966, Downtowner requested of Keith and Lowther that they pay the debts being sought in this suit from Commonwealth.
The circumstances just recited weaken the contention that the billings to Downtowner of Pine Bluff constituted notice to Commonwealth that the latter was expected to pay. Keith’s and Lowther’s licensing agreement with Downtowner of Memphis was in fact not can-celled until March 2,1966. Under the terms of that agreement, Keith and Lowther could not transfer the license to a third party. So it cannot be said that Commonwealth succeeded to the privileges and obligations of that contract. Any obligations arising between the parties in this case had to result from some agreement made between them after July 1, 1965.
When Commonwealth took over the enterprise it is undisputed that only a brief operation was anticipated. Is it reasonable that Commonwealth would want to subscribe to the involved services? The business was already burdened with debt and the interim operation was costly to Commonwealth. Had Commonwealth’s secretary been told at the Memphis meeting that royalty payments, advertising fees, and sign rentals would be re quired if the name “Downtowner” was used, it is more reasonable to believe that the connection with Down-towner at Memphis would then and there have been, abandoned.
The endeavor of Commonwealth to keep the business open was expected to benefit all the other creditors, including- appellant Downtowner. The Pine Bluff Down-towner was one of its nationwide affiliates. Rehabilitation would mean a retention of that association. It would be profitable to appellant and the supply firms owned by it. The fact that Downtowner, Memphis, had good reason to benefit from continuing its Pine Bluff connection is significant in evaluating the intent of the parties.
Prom what has already been said, our evident holding is that Commonwealth was not guilty of tortious conduct from June 23, 1965, until February 1966. February marks the date Commonwealth was requested to remove all Downtowner signs, marks, trade-marks, and similar indications that the operation was a Downtown-er affiliate.
We now consider the second time period, namely the time during which the name “Down Town Motel” was used. Roughly, that period would be from early March to October 27, 1966. First it should be pointed out that Downtowner uses the words “tortious conduct” and at the same time uses the contract price of $13.65 per day in calculating damages. That is not consistent. Nor is Downtowner’s plea for damages consistent with the record. Commonwealth moved to require Downtown-er to elect between suing on contract and damages for infringement for use of Downtowner’s name. According to the record, Downtowner waived any claim for damages and sought recovery “for the franchise fees for the use of the name.”
Irrespective of the facts just recited, Downtowner has not preponderantly shown an infringement during the second time period. That allegation is based on the similarity of outdoor advertising. In March 1966, Commonwealth directed a painter to change the outdoor signs. Downtowner’s registered “crest,” topped by a crown, was removed along with the crown. That was changed to a simple rectangle. “Downtowner Motor Inn” was removed and the words “Down Town Motel” were placed in the rectangle. The president of Commonwealth explained that the motel was in downtown Pine Bluff; that he was active in a movement of downtown merchants to bring more business into the heart of the business district; hence he thought the name “Down Town Motel” would not only identify its location but would make a contribution to the efforts of organized downtown merchants.
We hold that Commonwealth’s sign was not so deceptively similar to Downtowner’s as to be likely to confusion, to the advantage of Commonwealth. See Dad’s Root Beer Co. v. Atkin, 90 F. Supp. 477 (1950).
Finally, Downtowner seeks to enjoin appellee from future appropriation of Downtowner’s trade name, mark, and design. Commonwealth is not authorized by contract with Downtowner to utilize those registered marks. We see no necessity in issuing an injunction to cover the subject. That matter has apparently become moot.
Our reasons for denying relief to Downtowner do not coincide with the reasons stated by the trial court. Notwithstanding that difference in reasoning, we affirm the result of the trial court. Langley v. Reames, 210 Ark. 624, 197 S. W. 2d 291 (1946).
Affirmed.
Harris, C. J., not participating. | [
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Smith, J.
This action was to recover three dollars, the balance due upon a pair of shoes sold and delivered to one Staggs upo.n the credit of the defendant. The justice’s docket does not show upon what issue the case was tried before him. But in the circuit court, where the trial was before the court without a jury, the defendant’s attorney, in stating his defense, before the introduction of any testimony, announced that he relied on the Statute of Frauds. The plaintiff himself swore, that before he would agree to sell Staggs the shoes, the defendant promised to pay one-half of the price. But another of his witnesses, who was present at the conversation, testified that the promise was that the defendant would see the balance paid. The defendant, in his testimony, denied having made any • promise, either direct or collateral.
The circuit court, without passing upon the evidence or the weight of it, declared that the defendant could not have the benefit of the Statute of Frauds without specially pleading it, and proceeded to give judgment for the plaintiff. To his motion for a new trial, the defendant appended the affidavit of the justice of the peace from whose judgment the appeal was taken, showing that the case was defended and decided in his court upon the Statute of Frauds.
In proceedings before a justice of the peace the pleadings may be oral. And no greater formality is required when the case reaches the circuit court on appeal. This is, and always has been, the law in this State. Mansf. Dig., Sec. 4050; Davis v. Pitman, Hempstead’s Rep., 44; Chowning v. Barnett, 30 Ark., 560; Heartman v. Franks, 36 Ark., 501; T. & St. L. R'y v. Hall, 44 Id., 375.
The circuit court erred in giving judgment for the plaintiff for want of a written answer; for the ruling practically amounts to this. It was sufficient for the defendant, when the case was called for trial, to indicate orally and informally what his defense was.
Reversed, and a new trial ordered. | [
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Cockrill, C. J.
The only 'question presented by the record is the sufficiency of the summons. Upon the filing of a complaint and affidavit for attachment, in' proper form, in the •clerk’s office, the following writ was issued :
“ORDER OF ATTACHMENT.
The State of Arkansas, Logan Circuit Court.
Rice, Stix & Co., v. Dale & Richardson.
Plaintiffs. Defendants.
The State of Arkansas,
To the sheriff of Logan county:
You are commanded to attach and safely keep the property of the defendants, J. J. Dale and James Richardson, in your county, not exempt from execution, or so much thereof as will satisfy the claim of Rice, Stix & Co., the plaintiffs in this action, for six hundred and twenty-four and 88-100 dollars ($624.88) and fifty ($50) dollars for the cost thereof; and to summons J. J. Dale and James Richardson, and such other persons as the plaintiffs may suggest as garnishees, to answer to this action on the first day of the next, March, 1884, term of the Logan Circuit Court, and you will make due return of this order on that day.
,——, L. S. JWv—/
Witness, my hand and seal of said court, this, 22d day of January, 1884. H. G. SADLER, Clerk.”
The sheriff’s return shows a seizure of the Defendant Dale’s property, under the writ, and service upon him by leaving a copy at his usual place of abode with a member of his family over the age of fifteen years,
There was no appearance for the Defendant, and the Plaintiffs sought to take judgment by default against him, but the Court, at the suggestion of another creditor who appeared solely as amicus curia, in effect quashed the attachment and dismissed the complaint, because, as the record states, no summons having issued, there was no action pending.
It is no objection to the summons that it is joined with the order of attachment. That was ruled in the case of Weil & Bro. v. Kittay, 40 Ark., 528. But it is urged that the Defendant was summoned to answer as a garnishee. It was not shown, and it is not probable that the Defendant was under this misapprehension. The process served upon him distinctly shows that an action had been instituted against him, and that he was required to answer it. This is the special office of a summons. Henderson v. Graham, 84 N. C., 496. The statutory form of' writs and process should be strictly observed, but the Court is required to disregard any defect which does not affect the substantive rights of a party. This Court adopted a liberal policy in this respect as long ago as Mitchell v. Conley, 13 Ark., 414, and the extent to which the doctrine has been carried appears. iii the numerous cases since determined. See Kahn v. Kuhn, Ark., 404.
A precedent for the process in question is found in the case of Weil & Bro. v. Kittay, sup. An inspection of the record of that case discloses no material difference between the two.
Reverse the judgment and remand for further proceedings. | [
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Eakin,' J.
On the 19th of June, 1885, Andrew Jackson presented to this court a petition, stating: That he was illegally restrained of his liberty by the sheriff of Pulaski county, and incarcerated in the jail; and that he would be confined upon a farm of said sheriff, used for working prisoners convicted of misdemeanors.
He shows that in March last, he was taken to jail under a commitment from A. Walrath, Esq., a justice of the peace., which described his offense as one “against public morals.” From this imprisonment he was discharged by the Honorable Chancellor of the Pulaski chancery court.
On the nth of June, 1885, he was again arrested upon another warrant of commitment issued by the same justice for the same supposed offense. He obtained .from the same chancellor a second writ of habeas corpus, upon which relief wag denied. He was remanded to the custody of the sheriff.
The chancellor heard the matter on the papers before him without oral evidence. The papers were certified by him and filed in the office of the chancery clerk. A copy of the same certified by the clerk is presented with this petition.
He prays for a writ of certiorari to the clerk, to bring the same up formally, and that this court may reverse the action of the chancellor and discharge him. The attorney general of the state appears to the petition and waives the writ, agreeing to consider the copy of the proceedings already presented, as if returned upon certiorari.
By the constitution this court has a general superintending control “ over all inferior courts of law and equity.” A proceeding before a chancellor or circuit judge at chambers, upon habeas corpus, is not a proceeding, strictly speaking, before a court, nor is his action the action of the court over which he ordinarily presides. But it is essentially a judicial proceeding in its nature, requiring the exercise of judicial functions and discretion. It is a judicial tribunal dealing with matters which affect the dearest rights in social life. The questions arising upon writs of habeas corpus, whether it be the right to bail, or the right to be relieved of improper restraint, or the right to the personal care and custody of children, are all rights of the gravest importance. It would be a disgrace to any government, if the decision of such matters were left to the arbitrary will of one man without appeal or means of correction.
The successive constitutions of the state, from the beginning, have contained, almost totidem verbis, the same provision, and this court has given the clause a liberal construction, consistent with reason and its obvious intention. It has freely exercised the right to supervise and control the action of judges in chambers in habeas corpus cases, upon an appropriate transcript of the proceedings. Good, ex parte, 19 Ark., 410; Kittrell, ex parte, 20 Ib., 499; Harbour, ex parte, 39 Ark., 126.
No objection is made in this case of a matter which we, nevertheless, deem it well not to pass without notice. The x proceedings before the chancellor were certified by him to the Pulaski chancery court, and filed by the clerk. In criminal matters, such as applications for bail, or to be discharged from punishments adjudged for crime, it would be better to return the papers and proceedings to the clerk of the circuit court of the county in which the writ was heard, or, if there be a prosecution pending concerning the matter, then to the clerk of the circuit court of the county in which it is pending. Mansf. Dig., Sec. 3584. In this case we waive that form under the implied consent of the state to take the transcript brought up, as presenting the true facts, and as being in all respects- such as would have been obtained by strict compliance with the law. Being careful to observe that it is not a precedent to be applied to appeals from courts, we proceed to examine whether or not the chancellor erred or abused any discretion in refusing the relief and remanding the petitioner to custody.
He has nothing to do with the administration of the crimjnai[ lawS; nor right to interfere with them. He is simply empowered to hold the cegis of the constitution over those whose liberty is infringed by void process of law, or, what is the same thing, no process at all. In civil matters, his discretion, under the writ of habeas corptis, is somewhat wider, in determining matters affecting the domestic relations and matters of restraint from causes independent of crime, such as the right to restrain persons in asylums, etc. But where he finds one restrained by valid legal process of commitment, and not entitled to bail, he cannot go behind the warrant, and determine whether or not there was error in the proceedings. He has no appellate jurisdiction over criminal trials. The question then comes to this : Is the warrant valid upon its face ? There is no doubt of the jurisdiction of the justice of the peace to try and determine cases of misdemeanor.
The warrant must set forth the crime of which the defendant # . was convicted, and for which he was committed. Rohe, ex parte, 5 Ark., 104. The warrant returned in this case describes the offense as “committing an act injurious to public morals, by leaving his wife and child without the means of support, and living openly and publicly with one Dolly Hare.” There could be no harm in living openly and publicly with Dolly Hare, or any one else, unless Dolly Hare were a woman and they were cohabiting as husband and wife, which is not charged. Many men live openly and publicly with very estimable ladies, who are either relations, dependents, or friends.
Is it a misdemeanor, cognizable at law, to “leave a wife and child without the means of support ?” It is certainly a very unworthy thing to do, and worthy of the gravest reprehension, unless justified by necessity. But if it be a crime it must be so at common law. We have no statute making it such. The municipal laws of most countries seem very imperfect in their means of enforcing the duties of parents to their children, either for maintenance or education; although all civilized nations acknowledge the obligation. After all, the natural affections are the best reliance.
Sir Wm. Blackstone in endeavoring to formulate and collect the duties of parents to children at common law, which can be enforced by mandatory provisions, or punished by neglect, says nothing of such a misdemeanor as abandoning them without the meams of support. By statute of 43 Elizabeth, Ch. 7, the parents and grandparents of poor, impotent persons, were directed to maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct; and by 5 Geo. 1, C. 8, it was provided that if a parent runs away and leaves his children, the church-wardens and overseers of the parish shall seize his rents, goods and chattels, and. dispose of them for their relief. None of these statutes were in force here, however, and if they were they do not provide for the punishment of an offender criminally. That does not seem to have been provided in England before the time of Victoria.
There is a line of cases which hold that where it is the duty of one-to maintain another, and that duty is so neglected that injury occurs, the party neglecting the duty is liable to indictment for the consequences, and the crime will be a misdemeanor or a felony, according to the nature of the consequences. But it is the injtiry which constitutes the crime, the abandonment without the injury not being indictable, unless the person be exposed to danger. For instance, if a child wilfully neglected should die, the indictment should be for a felonious homicide, or, if otherwise injured, for assault and battery. Bishop on Crim. Law, Vol. I, Secs. 883-4; Vol. II, Secs. 29, 658-9-60. None of these English cases go to the extent, however, of holding that the desertion of a child and its mother, leaving them without the means of support, is, of itself, criminal. One who carelessly and wantonly discharges a pistol in a public place,, whereby death ensues, might be convicted of manslaughter,, but a commitment for carelessly firing a pistol in a public place would show no crime cognizable at law.
The warrant alleges that the petitioner was convicted of the crime of committing an act injurious to the public morals, by leaving his wife, etc. By the Revised Statutes, Chap. 44, Sec. 7, it is made a misdemeanor to “commit any act injurious to-the public health, or public morals, or to the perversion or obstruction of public justice, or the due administration of the laws.” We are not aware that this act has ever been judicially questioned, or ever in any case heretofore enforced. It has trickled down unnoticed in practice, through all the digests, and finds its place in Mansfield’s, Sec. 1961. For want of something more definite, the justice of the peace has brought it now to bear upon Andrew Jackson, and it must be noticed.
We cannot conceive how a crime can, on any sound principle, be defined in so vague a fashion. Criminality depends, under it, upon the moral idiosyncrasies of the individuals who compose the court and jury. The standard of crime would be ever varying, and the courts would constantly be appealed to-as the instruments of moral reform, changing with all fluctuations, of moral sentiment. The law is simply null. The constitution, which forbids ex post facto laws, could not tolerate a law which would make an act a crime, or not, according to the moral sentiment which might happen to prevail with the judge and jury after the act had been committed.
Analyzing this warrant we cannot find that it sets forth any offense as the ground of commitment. We think the Honorable Chancellor was mistaken in his view of the law, and should have held this commitment void, as he had rightfully held the former was.
The sheriff, against whom the writ ran below, is represented here by the attorney general of the state, and will take cogni ■zance of the order now made, which will be that the petitioner be discharged with costs. | [
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Cockrill, C. J.
The appellee was indicted under the following statute:
‘'Any person detained at any public ferry by reason of such ferryman not having sufficient boats or other crafts, and hands to work the same, or by neglecting his duty in any way, may make application to some justice of the peace, in the township where the ferry is located, for a warrant of arrest; and said justice is hereby required to issue the same, and impose such fine, on such ferryman, not exceeding twenty-five dollars, as to such justice may seem just and equitable.” Mansf. Digest, Sec. 3330.
A general demurrer to the indictment was sustained, and the state appealed. It is conceded that the indictment follows the statute in making the charge against the appellee, but it is contended the act does not create a public offense which may be prosecuted by indictment. The statute, in forcé when the act quoted was enacted, defines a public offense as “any act pr omission for which the law has prescribed a punishment.” Mansf. Dig., Sec. 1491;
The state, in granting the ferry franchise, may impose such terms and conditions upon the right to enjoy it as are necessary to its proper regulation. One of the duties imposed by the law upon the ferryman is that he shall provide boats and hands sufficient to serve the public with convenience and dispatch. A fine of not more than twenty-five dollars is visited upon him for an omission of this duty, and it was for this the appellee was indicted. There is nothing in the statute to indicate that this fine is exceptional in any particular. The general statutes governing the disposition of fines imposed for other acts or omissions, and defining penalties for non-payment, are applicable to the fine here imposed. It was plainly intended as a punishment, and the act creates a public offense within the statutory definition. As the offense is not punishable as a felony, it is a misdemeanor. Mansf. Dig., 1492, 1494.
When the act in question was passed the circuit courts had jurisdiction of misdemeanors, concurrent with justices of the peace. This jurisdiction was conferred in terms by the statute. Gantt's Dig., Sec.-.
It may be a correct general rule, contended for by the learned counsel for the appellee, that when the statute creates a new offense and prescribes the mode of its punishment, the common law remedy cannot be pursued—the statutory procedure being exclusive. It is, however, only a rule of the proper construction of statutes, and proceeds upon the theory that it was the legislative intent—that having pointed out one remedy it is presumed the intention was to exclude another. To arrive at the legislative will is the end of all interpretation, and the fact that the statute relates to the mode of procedure does not make an exception of it. Bish. St. Cr., Sec. 253.
Can the intention be gathered from this act, to deprive the circuit court of the jurisdiction, conferred by the same authority that enacted it, to try the class of cases to which the newly made offense belongs ?
The statute is not to be construed as though it stood alone on the subject. “ A statute is a fresh drop added to the yielding mass of -the prior law, to be mingled by interpretation with it.” Bishop St. Cr., Sec., 113 b. In construing any statute we are to place beside it the other relevant statutes, and give it a meaning and effect derived from the combined whole. Where the harmony of the law requires, one statute may be construed as lengthening out another. Bisk., sup., Secs. 123, 128. This is especially true of the law of procedure—each act is passed in reference to the general law upon the subject; the whole system is construed together, and the statute combines and operates with the entire law, of which it becomes a part. In the words of Mr. Bishop, “The rule of strict interpretation does not prevent our calling in the aid of other rules, and giving each its appropriate scope, yet so as not to overturn this one. For example, penal statutes are not to be so construed as to work an absurdity, or. defeat their purpose or the process of the court instituted for their enforcement.” St. Cr., Sec. 200.
A strict and literal construction of the act before us would lead to the conclusion that a warrant should issue without affidavit therefor; that the justice should inflict the fine on complaint made, without the right of trial by jury, or indeed any trial at all, and without the right of appeal. We cannot presume the legislature intended this absurdity. Nor is any new procedure pointed out by the act. The ordinary proceeding before justices of the peace in prosecutions for misdemeanors is recognized.
A limitation is placed on the right to proceed, however, before a justice of the peace. The act prescribes that it must be at the instance of the party aggrieved. This was, doubtless, in analogy to a former statute, of this state, in regard to trespass, which required a prosecution by the party injured. The design was to prevent frivolous prosecutions. State v. Brown, 10 Ark., 104; State v. Stanford, 20 Ib., 145.
As the the legislature has not manifested the intention in this matter to deprive the circuit court of its jurisdiction, and as it has placed no limitation on the mode of procedure there, it must take the ordinary course of prosecutions for the punishment of misdemeanors. It was, perhaps, thought that there was not the same necessity for a limitatiom in the proceedings before a grand jury, as before a justice of the peace. But whatever may have been the motive, the legislature has not made it necessary for the the aggrieved party to set the prosecution in motion before the grand jury.
The act was continued in force by the Constitution of 1874, and under that instrument it could not take from the circuit court the power to try the offense. State v. Devers, 34. Ark., 188.
As the indictment “follows the statute, the demurrer should have been overruled, and the judgment must be reversed, and the cause remanded with instructions to overrule it. | [
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Cockrill, C. J.
Congress granted a right of way to the Hot Springs Railroad Company by act of March 3, 1877, through the Hot Springs reservation. The road was located and built through the city of Hot Springs, along the line of Benton street, the right of way occupying one hundred feet on the south side of it. This right of way lacked 130 feet of extending to the intersection of Malvern avenue, which is the western terminus of Benton street. On June 16, 1880, the United States, through congress, ceded to the city of Hot Springs the streets and other thoroughfares of the city, for public use, and thereafter the city by an appropriate ordinance granted the railroad company a right of way from its western terminus through Benton street to the intersection of Malvern avenue. The company extended its road-bed upon this additional right of way, making for that purpose an embankment in the street, fifty feet wide and from three to four feet above the grade of the street; the center thereof being in a direct line with the center of the congressional right of way. The sides of the embankment are of masonry, presenting solid granite walls, and preventing any use whatever by the public of so much of the street as is occupied by it.
The appellee is the owner of the premises on the two corners, next to the railroad, of Benton street and Malvern avenue. The lots on the north side of the street, front--feet on Malvern avenue and — feet on Benton street, the others 105 feet on Benton street and fifty-four feet on Malvern avenue. The embankment occupies a space between the two pieces of property, leaving twenty-five feet of open street between it and the premises on the south side of the street and sixty-five feet between it and the premises on the north side. The proof showed that the extension of the road-bed was elevated above the grade of the street in order to bring the new tracks upon a level with the old ; that the south side of the street, just east of the appellee’s premises on that side, was blockaded by the appellant’s turn-table placed within its congressional right of way, so that the embankment not only narrowed the street next to these premises, but also made it necessary for the appellee to take a circuitous route around the west end of it, in order to gain access to her premises on the south side of the street when approaching from the east, and that these facts depreciated the value of the premises on both sides of the street. The appellee sued the company lor this injury and recovered, judgment for $225$.
The company requested the court to instruct the jury as follows, viz:
“ The streets and alleys were ceded by congress to the city of Hot Springs for the use of the public, and if the city with sanc^0I1 0f legislature) grants a railroad company the right to construct and operate its road thereon, such company will not be liable to an abutting owner for consequential damages, unless it results from the negligent and improper construction of the road. It is not alleged in this case that the defendant’s road is negligently or improperly constructed. Therefore, if you find that the city of Hot Springs, by one or more ordinances adopted prior to the 1st day of March, 18.83, ' granted defendant the right of way upon Benton street, between plaintiff’s lots, and that the embankment and other structures complained of, or any of them, are located thereon, you will not find for the plaintiff by reason of damages caused to their lots by said embankment and such improvements.”
The court refused this, and charged the jury that the appellee was entitled to x’ecover the amount her property was diminished in value if the facts were found as stated. The counsel for the appellant submits that this action of the court raises this question :• “ Where the fee of the streets is in the city, and it grants a right of way to a railroad company to construct its road along a street, pursuant to an act of the legisla ture authorizing such use of the street, and the track is laid in a proper and skilful manner, is the corporation liable for consequential damages to abutting lot owners ?”
The cases sustaining the position assumed by the appellant have arisen mainly under the familiar constitutional restriction that private property shall not be taken for public use without compensation; and the decisions have generally turned upon what is a taking of property within the meaning of this provision. When the title of an owner of real estate, abutting upon a street which is appropriated in whole or in part by a railroad, extends to the center of the street, the cases concur in sustaining his right to recover not only for the fee in the street, which is actually taken, but also for the consequential damages done his. abutting premises. But when the fee to the street is in the public, and the legislature, having no. other restraint laid upon it, has sanctioned its use by a railroad, the weight of authority is that the abutting owner of real estate can recover nothing unless the corpus of his premises is actually invaded in some way. In other words, if an inconsiderable part of his estate is taken the owner may recover the incidental damage done to the whole; but he can recover nothing, even though the incidental damage to his estate be equally great, if nothing is taken. When this rule was promulgated the kind of consequential injuries here complained of had, perhaps, no existence. Now, the consequential injury may amount to an absolute destruction of value, and to make the right of recovery dependent upon the ownership of the fee in a street, in which the owner’s practical interest at last is only that of a servitude, is to make a difference with only a narrow legal distinction to back it. Many judges, while adhering to the rule, have condemned the practical injustice of .it, and have commended a change to the law-making power. ■ •
Our Constitution, adopted in the light of the injustice that may result from an enforcement of the rule, has placed an ad ditional limitation upon the right of eminent domain. The bill of rights does not stop at a simple prohibition against the taking of private property for public use without compensation. To this guaranty, which was found in the Constitution of 1868, the framers of the Constitution of 1874 added another, to wit: that private .property .shall not be damaged for public, use without compensation, and now the fundamental law is,, “.private property shall not be taken, appropriated or damaged, for public'use without just compensation.” Under this enlarged provision, our inquiry is no lopger limited to the question, has private property been taken for public use, and it is useless to recur to cases which are confined to the interpretation of a clause containing that limitation only. A provision similar to that in our Constitution is found in the constitutions of Illinois, Colorado, Georgia, Nebraska, California, West Virginia and Pennsylvania, and in each of these states it has been held by the courts of last resort that this addition to the old provision against taking private property without compensation was intended to afford redress where none could be had before. Pusey v. City of Allegheny, 98 Pa. St., 522; City of Reading v. Althouse, 93 Ib., 400; Reardon v. San Francisco, 7 A. & E. Cor. Cases, 454; Harman v. Omaha, Ib., 474; Gottschalk v. R. R., 14 Nebraska, 550; R. R. v. Fellers, 16 Ib., 169; Rigney v. Chicago, 102 Ill., 64; Atlanta v. Green, 67 Ga., 386; Denver v. Boyer, Col,, 23 Am. Law Reg., 440; Molandin v. M. P. R’y, 14 Fed. Rep., 394; Johnson v. Parkersburg, 16 W. Va., 402; Hutchinson v. Parkersburg, 23 Ib., 226; Transportation Co. v. Chicago, 99 U. S., 635.
An examination of the cases will show that it may now be taken as settled that where this provision prevails it is no longer necessary that there should be a physical invasion or spoliation of one’s lands in order to give a right of recovery. As was said in Reardon v. San Francisco, sup., “ It will occur to any one reflecting on the import of the clause that if it was not an additional guaranty to the usual one, its insertion was idle and unmeaning.” The decisions are not in accord, however, as to the extent of the injury for which the right of action is given.
In England, the railway clauses consolidation acts recognize a right of action in persons whose property has been “ injuriously affected” by the building of a railroad. Under these acts the British judges have usually held that no injuries were actionable except those for which the common law would have afforded a remedy, if the act causing the injury had not been authorized by parliament. The supreme court of Illinois place a like construction upon the. provision of their constitution. Other courts have ruled that the redress intended by a similar provision is not restricted to cases which are actionable as at common law. Cases, sup.
The determination of this appeal does not render it necessary for us to enter upon the consideration of this question, because, if we conclude to say, with the Illinois and- English courts, interpreting words similar in meaning to those in our constitution, that such language recognizes a right to recover only where it would have existed at common law; or, if we interpret the provision as recognizing a new right of action, as some of the state courts have done,’ the appellee, in either event, is entitled to compensation. An examination of a few of the decisions adopting the more restrictive interpretations of this provision will be sufficient to show this.
The effect of this provision of the constitution was before the supreme court of Illinois repeatedly prior to the case of Rigney v. Chicago, 102 Ill., 64. In that case the court reviews its former rulings and attempts to settle the question definitely. It is said : “Under the constitution of 1848, it was essential to a right of recovery, as - we have already seen, that there should be a direct physical injury to the corpus or subject of the property, such as overflowing it, casting sparks or cinders upon it, and the like ; but under the present constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage, in excess of that sustained by the public generally, which, by the common law would, in the absence of any constitutional or statutory provisions, give a right of action.” Again, at page 80:
“The question then recurs, what additional class of cases did the framers of the new constitution intend to provide for which are not embraced in the old ? While it is clear that the present constitution was intended to afford redress in a certain class of cases for which there was no remedy under the old constitution, yet we think it equally clear that it was not intended to reach every possible injury that might be occasioned by a public improvement. There are certain inj uries which are necessarily incident to the ownership of property in towns and cities which directly impair the value of private property, for which the law does not, and never has, afforded any relief.
So, as to an obstruction in a public street, if it does not practically affect the use or'enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery, it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law.”
In the last Illinois case on the subject, the court, following Rigney v. Chicago/ sustained a recovery for consequential damages against a railroad, upon facts similar to, but not as strong for the plaintiff as, those in this case. C. & W. I. R’y v. Ayers, 106 Ill., 511. The result was the same as in the Nebraska cases, sup.; Denver v. Boyer and Molondrin v. R’y, sup.
The English cases have recently undergone an exhaustive review in the house of lords, in the case of the Caledonia R’y v. Walker’s trustees, reported in 35 Moak, 177. Opinions were delivered by several of the lords, in which they do not quite agree as to the import of former decisions, but all concur in the opinion that where access to private property is interfered with by the construction of a railroad, and the value of the property, irrespective of any particular use which may be made of it, is so dependent upon the existence of that access as to be substantially diminished by the obstruction, the owner is entitled to compensation.
In that case the claimant’s property was not situated on the street that was obstructed, and this fact would tend to render the case less formidable for a recovery than the case at bar, but the claimants were permitted to recover, Lord Selbourne saying a recovery was sustained in Beckett's case, [Law Rep. 3 C. P., 82, approved in McCarty's case, Law Rep. 7 H. L., 243), because “ the width of the public road, immediately opposite the plaintiff’s premises, was reduced so as to render it, not useless to those premises for the purpose of access, but less convenient than before. In McCarty’s case,” he continues, “this house gave compensation for the obstruction of access to the river Thames, from the plaintiff’s premises through a public dock, lying on the other side of a public road, adjoining those premises. It was argued for the appellants that these authorities ought not to be extended to any case of the obstruction of access to private property by a public road, when such obstruction is not immediately ex advérso the property. This limitation, however, seems to me arbitrary and unreasonable, and not warranted by the facts, either of Chamberlain’s case, 2 B. & S., 617, or of McCarty's case;” and it was held sufficient for a recovery if the right of access was proximate and not remote or indefinite. In the same case, Lord O’Hagan says of the McCarty case: “In that case, as in this, there was a public way, and in that,-as in this, access to it was obstructed by the works complained of. There, as here, the obstruction produced inconvenience to the general public, who had the use of the way, but there, as here, there was an additional and appreciable damage to the premises of an individual, rendering them less available for his purposes, and, therefore, diminishing their value. There the premises were pronounced to have been ‘injuriously affected,’ and the proprietor to have suffered damage to his estate, although no land was taken from him, and although no land of his was touched; the physical obstruction of access being deemed in itself an injury to the premises, which it damnified within the meaning of the compensation clauses.”
In Widder v. Buffalo R’y, 29 Up. Can., 2 B., 154, the court says: “ The plaintiff’s land has a frontage on the river Maitland, which appears to be a public, navigable river. To this river the plaintiff had access from his land. The defendants have excluded him from access to it, except by the inconvenient method of crossing their railway embankment. . . . This I have no doubt is injuriously affecting the land of the plaintiff, the same as if plaintiff had been cut off by an embankment from the public highway. ... In every case which has been cited, or which is referred to in those cited, it is stated, as unquestioned in law, that when there has been an act done, making the land of the claimant ‘ inaccessible by raising the ground immediately in front of it,’ referred to by Lord Cranworth in Rickett’s case, 2 H. L., 175, or ‘ by the right of access to or from the highway being taken away,’ per Boville, C. J., in Rickett’s case, sup., the claimant is entitled to compensation; and many other passages might be cited to the same effect.”
This is sufficient to show the certain drift of the authorities. In every instance it is said the recovery can be had only where the owner has sustained a special injury to his land—a damage not common to the public. It is not sufficient to defeat the right, however, that a large number of persons suffered special damage. If so, it would only be necessary for the company, when an injury has been inflicted upon one for which damage should be awarded, to inflict a like injury on many others in order to escape liability. No individual can recover for the general public inconvenience. But all the cases agree that this special damage is done by the erection of an embankment in the street . ex adverso the owner’s premises. See Mills Em. Dom., Secs. 206-7.
That was the gist of the complaint in this action, and the point of inquiry to which the proof was directed. The preponderance of the testimony showed that the embankment was a direct and special injury to the appellee’s property, and this is apparent from the statement of the facts. The injury from the embankment was increased by the fact that all access to the appellee’s premises was excluded to persons approaching from’ the east on Benton street, by reason of the turn-table.
The refusal of the court to charge the jury, in effect, that the appellant was not liable for any injury resulting from the works constructed on the right of way granted by congress, is assigned as error.
It was claimed by the appellee that the turn-table of the appellant, which was located in part upon the right of way, and in part upon a lot owned by the appellant, wholly obstructed Benton street at the east end of her lot, on the south side of the street. No claim for damages was made by reason of the construction of a road-bed and track upon the congressional light of way, but only for this obstruction.
It is contended that the right of way did not constitute a part of Benton street, and that the public had no rights therein, but that the railroad company has the exclusive right to the use and enjoyment of the entire width of the right of way.
This question involves the construction of the act of congress of March 3, 1877, which is the appellant’s grant of right of ' way. The act has relation to the Hot. Springs reservation. The title to this property had recently been adjudged to be in the United States. For more than half a century it had been claimed by individuals, under the belief that the government had parted with its title. A prosperous town had grown up upon it, with all of the incidents of business and social inter- * ests. Congress, in the act aforesaid, undertook to mitigate the hardships that would naturally follow a strict enforcement of the government’s legal rights. It gave the claimants of the property a pre-emption right to the land occupied by them. It recognized the existence and location of the city of Hot Springs, of its streets, alleys and thoroughfares. It empowered the commissioners, whose office was created by the act, among other things, to straighten or widen existing streets, and to lay off and open such additional streets as the convenience of the public and the interest of the government might require. The appellant’s rights are then granted and defined. The 17th Section is as follows:
“ That the right of way be, and it is hereby, granted to the Hot Springs Railroad Company; a company duly incorporated and organized under the laws of the State of Arkansas, to construct, maintain and operate its line of railroad upon, over and across the Hot Springs reservation, in the State of Arkansas, as follows.”
Data and points are then given for locating the right of way through the reservation and into the city; and Section i8 fixes its width at 100 feet.
This is all there is in relation to the right of way. A proviso was added, to the effect that the railroad might purchase land, not to exceed '20 acres, for shops, depots and other purposes, on the same terms as individuals.
It is a conceded fact in this case, that Benton street was one of the original streets of the town of Hot Springs, and was still used as such at the time of the passage of the act. It was then only 80 feet wide, and the entire space of the old street is now covered by the railroad right of way, leaving an open street of 40 feet north of the right of way. This results from the fact that the commissioners increased the width of the street to 140 feet. This fact is apparent from the official map, made in pursuance of the act of congress, a copy of which accompanies the bill of exceptions. Lots and blocks are laid out on each side, as upon other streets, with 140 feet intervening between them, with no means of egress other than through this street; and the street had an unobstructed width of 140 feet from its western terminus to the appellant’s congressional right of way, before the railroad, by treaty with the city, extended its track over it.
This view was also entertained by the company, for it procured the passage of an ordinance by the city and entered into a contract with the city authorities to gain the privilege of erecting its depot and turn-table in the street within the limits of the right of way granted by congress.
There is nothing in the record to sustain the appellant’s contention that it was the intention of the commissioners to abandon any part of the street.
Whether congress fixed the right of way, by such data that any competent engineer would have located it without varia tion from the line finally adopted, the proof does not disclose, but we are informed that the location was approved by the Hot Springs commissioners. It was not one of the duties of the commissioners, under the act, to locate the right of way, but we are not apprised of any legal objection that can be urged to the location. We have then this result: The act recognizes the usual rights of the public in the streets of Hot Springs, as finally laid out by the commissioners, and at the same time grants the railroad a right of way through one of these streets.
It is the duty of the courts to construe the several provisions of the act together, without annulling any of its parts, if this can be done consistently.
We see no difficulty in giving effect to the several parts of the act pointed out, and harmonizing the rights of the land owners and the railroad in the street. There is nothing in the act to indicate an intention on the part of congress to invest the railroad with an absolute title to any part of the strip of land upon which its road was to be located. It was simply a grant of a right of way, and this carried with it only the right to “ construct, maintain and operate its line of railroad,” on the strip of land indicated.
But the appellant contends that it has the right to appropriate the right of way as a location for its turntables, depots, or for any other purpose necessary to the operation of its road. This may be true when the exercise of the privilege does not conflict with the rights of others. The occupants, claimants and purchasers of lots on Benton street, however, had the right, co-ordinate in time and authority, to expect and demand the use and enjoyment of the street as such, subject always to the restraint laid upon it by the act itself, of permitting the company to build and operate its road upon it. But an exclusive right in the company in any part of it would be inconsistent with the land owners’ privilege of user.
Benton street necessarily intersects many other streets, and if the company’s position were once admitted, what would prevent it from blockading any and all cross streets, at their intersection with Benton, with their depots, warehouses, turntables, etc., and thus substantially deprive the two parts of the town of the means of intercommunication?
To the extent that the legitimate use of the street, as a right of way proper, does not prevent the use and enjoyment of it as a public highway, the adjacent property owners and the public in general have a right to use it as such. The rights of the railroad in this respect are no greater than if the right of way had been conferred by the city, under legislative authority for that purpose, and the only authority the company has shown for maintaining the turn-table complained of is the city ordinance.
We have treated the case as though the legislature had empowered the city to authorize the use of the street, as the company has used it, without compensation to the owner; and without reference to the fact that the embankment might have been constructed writh more convenient access to the public.
At the time the ordinance, under which appellants claim, was passed, there was no legislative authority for it. After the appellee’s suit was instituted, the legislature, by general act, ratified the action of the city, and we have been content to' treat the act of the legislature as the appellant’s counsel has done, as validating the city’s action ab initio.. The consent of the city to the use of the street, however, cannot impair the appellee’s right to compensation, for, as we have seen, it is a right secured to him by the Constitution.
Finding no error, the judgment is affirmed. | [
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Cockrill, C. J..
The indictment in this case contains two counts. One is framed under the first section of the gaming act [Mansfield’s Revised Statutes, Sec. 1827), and 'charges the Appellee with setting up a gaming table. The other is found under the fourth section of the same act (Ib., Sec. 1830) and charges the same person with knowingly permitting a gambling table to be exhibited in a house occupied by him.
The Defendant demurred to the indictment upon the ground that two offenses were charged against him. The prosecuting attorney suggested to the Court, as the record discloses, that the same offense was charged in different modes for the purposes of meeting the contingencies of the proof, and disclaimed the intention of prosecuting for more than one offense. The Court, however, sustained the demurrer, and the State refusing to elect upon which count the prosecution should proceed, a judgment discharging the defendant was entered and the State appealed.
The practice of putting the State to her election between counts in an indictment, for offenses less than a felony, was introduced into the practice in this State by the Criminal Code. Formerly, in cases of misdemeanors, the joinder of several offenses in one indictment was permissible. State v. Holland, 22 Ark., 242. Now, where more than one offense is charged in an indictment it js a ground of demurrer. Mansfield’s Revised Statutes, Secs. 2164, 2108. These provisions are applicable as well to misdemeanors as felonies. State v. Brewer, 33 Ark., 176; State v. Lancaster, 36 Ib., 55; Bridges v. State, 37 Ib., 224.; State v. Rhea, 38 Ib., 555. The indictment must charge but one offense, but when the offense may have been committed in different modes or by different means, the prosecutor may join a number of counts, charging the offense in as many forms as he thinks the exigencies of the case may demand. This is done to enable the State to meet the varying forms of the proof, and prevent a variance between the allegations as to the mode or means in or by which the offense was committed, and the proof adduced at the trial. The rule is illustrated by reference to the cases, State v. Jourdan, 32 Ark., 203; State v. Brewer, 33 Ib., 176; Howard v. State, 34 Ib., 433; State v. Lancaster, 36 Ib., 55; Bridges v. State, 37 Ib., 224; State v. Rhea, 38 Ib., 555. The cases cited show, too, that when it is not apparent from the face of the indictment that but one offense is intended, the prosecuting attorney may obviate the necessity of making an - election, by stating to the court that all of the counts go to the commission of the same offense. Where, however, it is obvious that the several counts cannot relate to one offense, the election to proceed upon one should be required at once. The present case appears to come within this rule. The offense of exhibiting a gambling device, created by the first section of the statute cited, and that of knowingly permitting the device to be exhibited in a house owned or occupied by the accused, are not one and the same. Steth v. State, 13 Ark., 680. Both sections look to the same end, the. suppression of banking games, but they are aimed at different persons and different sources of the evil. The prosecutor may charge a crime under either section in as many counts as the description of the offense will allow, but as long as the statute inhibits him' from joining two distinct offenses, a count under each of the sections ■cannot keep company in the same indictment. When the objection is taken, the State must make choice between them or go out of court.
The Circuit Court did not err in sustaining the demurrer, and the judgment is affirmed. | [
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Smith, J.
The plaintiff’s intestate was the conductor of a gravel train on the defendant’s road, and was killed in a wreck which occurred near the bridge over Hurricane creek. The complaint counted upon negligence in the defendant company in three particulars: 1, In not providing'a secure track; 2, In not causing signals to be given to the train before it reached the place of danger; and, 3, In the employment of a reckless and incompetent engineer.
The answer denied specifically the alleged acts of negligence and averred that the deceased lost his life by his own negligence, or by that of a fellow-servant. A jury trial resulted in a verdict and judgment for the plaintiff for $10,000.
Morgart, the deceased, had had an experience of twenty-two years in the operation of railroads. He had been in the defendant’s service some two months, and for the last six weeks of that time had acted in the capacity of conductor of a gravel train, which plied daily between the sand-pits near Benton, and Little Rock and points beyond. The engineer of his train, during this period, was one Campbell. Five miles north of Benton the railroad crosses Hurricane creek; and the trestle supporting the bridge over it was undergoing repairs, new stringers, cross-ties, etc., being put in. Work of this nature had been proceeding at the bridge for several days, and this was known to Morgart. Boards with the printed words, “ Slow ” were kept posted in both directions at the distance of half a mile from the bridge. These were intended for the eye of the engineer, and those in charge of the train, and signified: “ Run from four to six miles an hour.” When the progress of the work obstructed the track, or rendered it impassable, flagmen were stationed at the same distance from the bridge to flag down the train. This signal meant “ Stop, and don’t, attempt to pass the obstacle until the word of command is given.”
On the morning of the fatal day, the foreman of the bridge gang had seen Morgart at Benton and had warned him that they would be at work on this bridge that day, and to keep a look-out. Between 7 and 8 a. m. the gravel train came in sight, and, with slackened speed, passed over in safety and proceeded northwards. Several other trains also passed in the interval between that time and Morgart’s return shortly after noon. The bridge force were now at dinner, a few yards away from the track. Before ceasing work, the track was left in line and in fit condition for the passage of trains that were run carefully, and the flag-men were called in.
Approaching Hurricane creek from the north, for a mile .or more, the grade descends at the rate of fifty-two to fifty-eight feet to the mile. The train rushed,down this grade and over the bridge at a speed variously estimated between twenty and thirty miles an hour. The engine was running backwards, the tender being in front; next came the caboose, in which Morgart rode; then followed twenty or more empty flat-cars. As the train approached the bridge Morgart was observed standing in the door of the caboose, and making signals either to the engineer or the brakemen. The engineer was using steam. The tender and engine passed over the trestle, but left the track soon afterwards and ran upon the cross-ties for seventy or one hundred yards. When the train was brought to a standstill, all of the cars . were south of the trestle, the nine rear cars standing on the rail. The others were off the rail, and most of them badly torn up. The caboose was broken into fragments, and Morgart was dead.
The jury could not have found that the proper danger signals had not been displayed. The uncontradicted evidence is that the “slow” boards were out. The track was not impassable for trains running at the speed they indicated. Hence there was no impropriety in withdrawing the flagmen.
Neither could the jury have found that the condition of the track, or of the trestle, was the immediate cause of the wreck. The line of spikes fastening the cross-ties to the stringers and some of the spikes for holding the rails to the ties had been drawn out in the morning, and had not been replaced at noon. But there is no reason to suppose that these things had any share in bringing about the wreck. No part of the structure gave way; the bridge timbers were not moved from their position ; and there was no spreading of the rails on the track over the bridge. A “tight rail” had also been observed about noon, near the south end of the trestle. The rail had expanded under the heat of an August sun, and there was a kink in it. But the foreman, a careful and competent man, had, with his own hands and the assistance of one of his gang, righted this rail and had left it straight and in proper position. Every car of the wrecked train passed over the rail without being thrown off at that point. And after the wreck was cleared away, and before the defect in the rail had been further remedied, the delayed trains, going in both directions, passed in safety.
The charge of the court on this branch of the case was erroneous and misleading. The jury were told, in substance, that the company owed it to their servants to maintain, under all circumstances, a firm roád-bed and safe track. This is the measure of its duty to the public, but not universally to its employes. A railroad track is constantly wearing out and requires frequent renewals. And it is often necessary for gravel and construction trains to go over and upon unsafe portions of the track to transfer the materials needed for making repairs. The duty of the company under such circumstances is to give timely notice of the insecurity, so that the necessary precautions may be adopted to avert danger. Henry v. L. S. & M. S. R’y Co., 49 Mich., 495.
'The testimony on both sides shows that the proximate cause of the disaster was the high speed at which the train was moved, in disregard of the danger signals.
Morgart was probably guilty of contributory negligence in making up his train; not so much, perhaps, in running with a reversed engine, as in having the caboose next to the engine, instead of at the rear, its customary and appropriate place. It belonged at the rear end, because in that position the conductor may supervise the whole train, and see that his men do their duty; and also because being nearly twice as heavy as- an ordinary freight car, and being furnished with double brakes, it can be made to act as a powerful clog upon the motion of the train. Its efficiency in checking the speed is impaired when it is put in the forward part of the train. The arrangement of the order of his cars is a matter over which the conductor has supreme control. But there was on this road no inflexible rule, nor uniform custom, requiring the caboose to stand at the end of the train. Therefore, it was in the power of the jury to resolve all doubts on this head in favor of the plaintiff.
But it was impossible for the jury, with a proper regard for the undisputed facts of the case, to absolve Morgart from blame in the matter of the accelerated speed. The rules of the company, printed on its time card and furnished to him, positively forbade him to run faster than fifteen miles an hour under any circumstances,, and subjected the engineer to his orders. The proofs show that upon descending grades the conductor, with his brakemen, can more effectually control the speed than the engineer, who can only shut off steam. Both were at fault here, first, in running above the maximum rate of speed prescribed; and again, in running the last half mile above the rate of six miles an hour.
Now, Morgart’s administrator cannot recover against the company for an injury, resulting in death, caused by Morgart’s own negligence. Neither can she recover if the injury was due to the negligence and misconduct of Campbell, while he was subject to the orders of Morgart, unless the deceased was free from fault and the company was negligent in. employing or retaining Campbell in its service. For the two were fellow-servants, engaged in the same employment, or else Morgart was the superior officer in charge, and the presumption is, the train was operated under his orders. Ragsdale v. M. & C. R. Co., 3 Baxt., 59 Tenn., 426; Dillon v. U. P. R. Co., 3 Dillon, 319; C. C. & I. C. R’y v. Troesch; 68 Ill., 545; Dewey v. C. & N. R. Co„ 31 Iowa, 373.
Some of the recent cases hold that a subordinate officer of a train, such as an engineer or brakeman, is not a co-servant of the conductor, within the meaning of the rule which exempts the master from liability. But this distinction cannot benefit the plaintiff, for it is founded upon the principle that the inferior servant is bound to obey orders, and that the conductor, whose right and duty it is to command the movements of the train, and to control the persons employed upon it, represents the company while performing these duties. Little Miami R. Co. v. Stevens, 20 Ohio, 416; C. & M. Railroad v. Ross, 112 U. S., 377; Moon's Adm’r v. R. & A. R. Co., 78 Va., 745; S. C., 49 Am. Rep., 401.
Campbell had been in the company’s service for six or seven years, first as a fireman and afterwards as a locomotive engineer; and was still in its service at the date of the trial. No attempt was made to show that the company had not exercised due caution in his original hiring, or his subsequent promotion. But evidence was adduced that he had the reputation of being a reckless runner and that he had been implicated in previous wrecks. And it was contended that the company knew, or could have known, of his unfitness, and should have dismissed him.
On the' other hand, it was shown that Campbell bore an excellent character among his superior officers in the operating department of the road, for skill and prudence; and that in the only serious wreck in which he had been involved the company had set on foot an investigation, the result of which was that the conductor of the train, and not Campbell, was to blame; and the conductor was suspended in consequence. The master mechanic, whose duty it is to employ and discharge engineers, swore that he had never heard aught, down to the day of the trial, derogatory to Campbell’s reputation as an engineer.
The burden was upon the plaintiff to show that the company had retained Campbell after having cause to believe, either from his general reputation, or his conduct on particular occasions, that he was not a suitable person to entrust with an engine.
If Campbell was notoriously incompetent or reckless, Morgart enjoyed excellent opportunities to become acquainted with his reputation, and also whether that reputation was deserved. Campbell was under him for six weeks, yet he made no complaint.
The rule is, that if the servant knows, as fully as the master, of the unfitness of a fellow-servant, and yet voluntarily continues in the service, he waives the master’s negligence and assumes the risk. Laning v. N. Y C. R. Co., 49 N. Y., 521; S. C. Thomps. on Negl., 932 and notes.
The jury were, in effect, so instructed. If, therefore, their verdict was based upon Campbell’s recklessness in handling his engine and the defendant’s responsibility for the result by keeping him in its service, they must either have forgotten that Campbell had been serving under Morgart for the six weeks immediately preceding, or they failed to apply the principle of law above announced, to this fact. For actual,knowledge of Campbell’s unfitness, or reputation, was not brought home to either party. And the means of knowledge were equally accessible to both, if indeed Morgart did not enjoy superior opportunities for observation.
Upon no sound theory of the law can the verdict be reconciled with the facts in proof.
It would be unprofitable to review seriatifi the numerous directions that were given to the jury, and the requests that were refused or modified. For the purposes of a second trial, their correctness can generally be tested by this opinion.
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Battle, J.
Strother C. Myers purchased the land in controversy, on the first day of August, 1853, and took possession and held it until about the first day of July, 1869, when he died intestate, without wife,1 children, father or brothers surviving .him. He left his mother, Margaret Myers, and three sisters, and the descendants of a deceased sister, his heirs at law. Margaret Myers became the owner of the land for and during her natural life. She died the fifth day of September, 1882. Appellants, who are the sisters and the descendants of the deceased sisters of Strother C. Myers, thereupon became entitled to the possession of the land and to hold the same in fee simple.
On the twenty-fourth day of November, 1871, Margaret Myers undertook and pretended to convey the land in controversy, in fee simple, to William H. Kellow, and he conveyed to W. B. Camp, some time during the year 1873. Camp, representing that he had a good title to the land, on the twenty-fourth day of July, 1875, for a valuable consideration, pretended to convey the same, by warranty deed, in fee simple, to W. Q. Sewell, one of the defendants and appellees herein. Sewell, thereupon, took possession of the land, and has at all times thereafter held the same. After this, and during the lifetime of Margaret Myers, he made and erected, on the land, lasting, permanent and valuable improvements. When he bought the land and made the improvements he believed he owned it in fee simple. He paid taxes on the land, since the death of Margaret Myers, to the amount of fifty dollars. The improvements made by him are worth the sum of seven hundred and sixty-two dollars and fifty cents, and the rents since the death of Margaret Myers and down, to the date of the judgment herein amount to the sum of eighty-seven dollars and fifty cents.
The court below rendered judgment in favor of appellants, and against Sewell for the land and costs, and ordered that no writ for the possession of the land issue in favor of appellants until payment of the sum of seven hundred and twenty-five dollars, the balance due for improvements and taxes after deducting amount due for rents, shall be made to Sewell.
The- judgment of the court belorv is based upon Section 26‡‡ of Mansfield’s Digest, which says: “If any person, believing himself to be the owner, either in law or equity, under color of title, has peaceably improved, or shall peaceably improve, any land which upon judicial investigation shall be decided to belong to another, the value of the improvement made as aforesaid, and the amount of all taxes which may have been paid on said land by such person, and those under whom he claims, shall be paid by the successful party to such occupant, or the person under whom or from whom he entered and holds, before the court rendering judgment in such proceeding shall cause possession to be delivered to such successful party.”
Is this statute constitutional? Similar statutes have been in force in many of the states for some time, “ and have been so uniformly held constitutional that we consider ourselves bound by the great weight of authority in their favor.” The following are some of the numerous cases in which such laws have been held constitutional. Ross v. Irving, 14 Ill., 171; Whitney v. Richardson, 31 Vt., 306; Armstrong v. Jackson, 1 Blackf., 374; Fowler v. Holbert, 4 Bibb, 54; Jones v. Carter, 12 Mass., 314; Sanders v. Wilson, 19 Tex., 194; Brackett v. Norcross, 1 Greenl. 89; Hunt's lessee v. McMahon, 5 Ohio, 79; Dothage v. Stewart, 35 Mo., 251; Love v. Shortzer, 31 Cal., 487.
But the statute of this state is different from the betterment laws of some of the states, in this; it gives to occupants the right to compensation and to hold possession of land on account of improvements made before its enactment. It is contended that it thereby divests vested rights, and requires the owner to pay for improvements, which at the time of its enactment rightfully belonged to him. Is it unconstitutional in this respect?
“Private rights,” says Judge Cooley, “may be interfered with by either the legislative, executive, or judicial department of the government. The executive department, in every instance, must show authority of law for its action, and occasion does not often arise for an examination of the limits which cir cumscribe its powers. The legislative department may, in some cases, constitutionally authorize interference, and in others may interpose by direct action.....But there is no rule or principle known to our system under which private property can be taken from one person and transferred to another, for the private use and benefit of such other person, whether by general law or by special enactment. The purpose must be public, and must have reference to the neéás or convenience of the public. No reason of general public policy will be sufficient, it seems, to validate such transfers when they operate upon existing vested rights.
“Nevertheless, in many cases and many ways remedial legislation may affect the control and disposition of property, and in some cases may change the nature of rights, give remedies where none existed before, and even divest legal titles in favor of substantial equities, where the legal and equitable rights do not chance to concur in the same person.
“ The chief restriction upon this class of legislation is, that vested rights must not be disturbed ; but in its application as a shield of protection, the term ‘ vested rights ’ is not used in any narrow or technical sense, or as imparting a power of legal control merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect, and of which the individual could not be deprived arbitrarily without injustice. The right to private property is a sacred right; not, as has been justly said, ‘introduced as the result of princes’ edicts, concessions and charters, but it was the old fundamental law, springing from the original frame and constitution of the realm.’
“ But as it is a right which rests upon equities, it has its reasonable limits and restrictions; it must have some regard to the general welfare and public policy; it cannot be a right which is to be examined, settled and defended on a distinct and separate consideration of the individual case, but rather on broad and general grounds which embrace the welfare of the whole community, and which seek the equal and impartial protection of the interests of all.” Cooley’s Constitutional Limitations, 356, 357.
Upon the principle that the legislature may interfere with private property for the purpose of adjusting “the equities of the parties asnear as possible according to natural justice,” the betterment laws of many states have been sustained.
In speaking of the betterment statutes of Vermont, in Whitney v. Richardson, supra, the court said:
“The right of the occupant to recover the value of his improvements does not depend upon the question whether the real owner has been vigilant or negligent in the assertion of his rights. It stands upon a principle of natural justice and equity, viz.: that the occupant, who, in good faith, believing himself to be the owner, had added to the permanent value of the land by his labor and his money, is in equity entitled to such added value; and that it would be unjust that the owner of the land should be enriched by acquiring the value of such improvements, without compensation to him who made them. This principle of natural justice hás been very widely, we may say, universally, recognized.”
“Betterment laws, then,” says Judge Cooley, “recognize the existence of an equitable right, and give a remedy for its enforcement where none had existed before. It is true that they make a man pay for improvements which he has not directed to be made; but this legislation presents no feature of officious interference by the government with private property. The improvements have been made by one person in good faith, and are now to be appropriated by another. The parties cannot be placed in statu quo, and the statute accomplishes justice as near as the circumstances of the case will admit, when it compels the owner of the land ... to pay the value ” of the betterments “to the person at whose expense they have been made. The case is peculiar; but a statute cannot be void as an unconstitutional interference' with private property which adjusts the equities of the parties as near as possible, according to natural justice.” Cooley's Constitutional Limitations, p. 389.
If the occupant, who in good faith, believing himself to be the owner, has made improvements on the lands of another, after the enactment of the statute, is in equity and justice entitled to pay for such improvements before he should be dispossessed, it is equally true that he is in equity and justice entitled to be paid for improvements he made in like good faith on lands of another, which he believed was his own, before the enactment of the statute, before he should be dispossessed. If the constitutionality of the statute, affording relief in one case, can be sustained, upon the same principle and by the. same argument, its constitutionality can be proved in the other. In speaking of the constitutionality of the betterment laws of Massachusetts, Chief Justice Parsons said : “The demandant has not contested the constitutionality of this statute, so far as it may affect actions sued after its passage, but denies it as affecting actions pending at that time. We see no ground for this distinction; and if it were competent for the legislature to make these provisions, to affect actions after to be commenced, the same provisions might apply with equal authority to actions then pending.” Bacon v. Callender, 6 Mass., 308.
There is no clause in the Constitution of this state or the United States inhibiting the legislature from enacting a statute, retrospective in its operation, like the one under consideration, allowing ejected occupants of land to recover the value of improvements made by them while in possession and before the passage of the act. This being true the power of the legislature to enact such a law results as a necessary consequence, “for it is uncontrovertibly true, the legislature may enact any’ law, the passage of which is riot expressly or impliedly forbid den by either the Constitution óf this state or that of the United States.” Abber v. May, 2 Paine, 74; Fowler v. Halbert, 4 Bibb., 52; Brackett v. Norcross, 1 Greenl., 92; Bacon v. Callender, 6 Mass., 303.
The betterment statute of this state is, therefore, constitutional, and Sewell is not precluded from its benefits because his improvements were made before its enactment.
Another question arises. The improvements were made during the lifetime of Margaret Myers, and before the life estate inherited by her determined. Is Sewell entitled to compensation, for the improvements, under the statute? As a general rule improvements made by life tenants, during the existence of the life estate, are referred to their interest in the land, and for them they would not be entitled to compensation. But it is different in this case. For a valuable consideration Camp pretended to convey to Sewell, in fee simple, by warranty deed, the land in controversy. Sewell believed that he, thereby, became the owner in fee simple. In this faith he, peaceably, made valuable and lasting improvements. Under this state of facts is he entitled to pay for the improvements ?
A similar question arose under a Massachusetts statute in Plimpton v. Plimpton, 12 Cush., 458, which says: “If the demanded premises have been actually held and possessed by the tenant in the action, and by those under whom he claims, for six years next before the commencement of the action, he shall, in case of judgment against him, be entitled to compensation in the manner hereafter provided, for the value of any buildings or improvements made or erected on the premises by himself, or by any person under whom he claims. The tenant shall also be entitled to like compensation, although the premises should not have been so held so long as six years, provided he holds them under a title which he had reason to believe good.” The land in controversy in that case was conveyed to the tenant by a deed, purporting to convey in fee simple. The tenant took possession and claimed the entire interest in the land. It was, however, adjudged in that case, that he only acquired a life estate. Improvements were made during the existence and after the termination of the life estate. The case was referred to an assessor to report the value of improvements. He allowed the tenant compensation for the improvements made during and after the life estate. The demandants contended that the assessor erred in computing anything for improvements made during the existence of the life estate. Chief Justice Shaw, in delivering the opinion of the court, after finding that the tenant made the improvements under a conveyance which he had reason to believe vested the title in fee simple in him, said: “On this ground, therefore, as well as the former,, we think the tenant entitled to betterments upon the principles, relied on by him; and the assessor having taken the same view of the relative rights of the parties, and assessed the compensation for improvements, on these principles, his report is accepted and judgment is to be rendered for the demandants, with allowance to the tenants for betterments, in conformity with the report.”
In Wales v. Coffin, 100 Mass., 177, the same question arose again under the same statute. Justice Hoar, delivering the opinion of the court, said: “The effect of the decision in Plimpton v. Plimpton is, in short, that the possession of a tenant may be so far adverse as to entitle him to compensation for betterments, although he holds a limited estate which entitles him to the possession at the same time, so that his possession does not constitute a disseisin of the tenant in remainder; if his holding is not in fact and intent under the partial and rightful title, but under a claim of the entire interest; . . . and it was decided further in Plimpton v. Plimpton, that the fact that the tenant had a good estate for life would not defeat the claim for betterments, if he had reason to believe that he had a title in fee;” and held accordingly.
The statute of this state is more liberal than the Massachusetts statute. Under the Massachusetts statute the occupant must hold “under a title which he has reason to believe good,” before he can recover compensation for improvements. Under the statute of this state he must be a bona fide occupant and hold under a “color of title.”
Was Sewell a bona fide occupant? In Green v. Biddle, 8 Wheat., 79, Mr. Justice Washington, in delivering the opinion of the court, said: He is one “who not only stipposes himself to be the true proprietor of the land, but who is ignorant that his title is contested by some other person, claiming a better right to it. Most unquestionably this character cannot be maintained, for a moment, after the occupant has notice of an adverse claim, especially if that be followed up by a suit to recover the possession. After this, he becomes a mala fide possessor, and holds at his peril, and is liable to restore all the mesne profits, together with the land.”
Sewell was a bona fide occupant; and unquestionably held under color of title. He did not hold under the partial and rightful title of Mrs. Myers, but under a claim of the entire interest ; and the improvements made by him are not referable to the life estate inherited by Mrs. Myers, but to his claim of the entire interest. If he had taken nothing by his deed he would most unquestionably have been entitled, under the statute, to compensation for his improvements. The failure to get what he had purchased and intended to hold and improve, and believed he had held and improved, but something else, should not defeat his right to compensation for the improvements.
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Smith, T.
Ward was convicted of selling liquor to a minor. He moved for a new trial, because the verdict was contrary to the evidence, and for misdirection of the jury.
There is no controversy about the facts. One Rowland, an" adult, invited several persons, including a minor, to drink with him at the bar of defendant’s saloon. Each named his drink, and glasses and a bottle of whisky were set out. The minor and the rest of the party drank in the presence of the defendant. Rowland paid for all the drinks, and the minor furnished no part of the money, but drank at the expense of Rowland.
The circuit court charged, in effect, that this was a sale to the minor within the prohibition of the statute, and refused to charge the converse of the proposition, viz: That it was not a sale to the minor, unless the jury should believe that Rowland was used by the minor as a screen- to conceal his own participation in the purchase, and that it was of no consequence that the barkeeper saw the minor present and understood that he was to drink one of the glasses.
Sec. 1878, of Mansf. Dig., provides that any person who .shall sell any ardent, vinous, malt or fermented liquors to a minor, without the written consent or order of the parent or guardian, shall be guilty of a misdemeanor.
A sale denotes the transfer of the property in a thing, from one to another, for a valuable consideration. This is its popular, as well as its legal, signification. There must be parties standing to each other in the relation of seller and buyer; their minds must assent to the same proposition; and money must be paid or promised. Bishop on Statutory Crimes, Sec. 1013, and cases cited; Benjamin on Sales, Sec. 1; Cooper v. State, 37 Ark., 418.
None of these requisites exist in the present case. The defendant has not sold, or intended to sell anything to the minor, The minor has not paid, or promised to pay, any money. No contract, express or. implied, has been entered into, or contemplated, between them; and the parties have had no dealings with each other, so far as the evidence discloses. Rowland has simply “treated” the minor to a dram of whisky, purchased of the defendant. N othing indicates that Rowland was the minor’s agent in the transaction.
Commonwealth v. Packard, 5 Gray, 101, was an indictment fo.r unlawful sales of intoxicating liquors. The witness swore thát he called for liquor, at a public house, kept by defendant, and that a waiter, by defendant’s order, delivered it to him; that witness had never paid defendant, nor the waiter; that he offered'to pay, but; defendant declined to take anything. It was held that this was no evidence of a sale. The court said : “A sale of intoxicating liquors is. a delivery, upon compensation made or stipulated to be made. There must be an agreement to pay, to make it a sale; otherwise it is a mere gratuity.” See also, Stevenson v. State, 65 Ind., 409, to same effect.
St. Goddard v. Burnham, 124 Mass., 578, was an action of tort, to recover a forfeiture for selling intoxicating liquor to the plaintiff’s minor son. On the trial it appeared that one Berger went into the defendant’s bar room, and there treated the minor with whisky; that the minor did not buy or pay for the whisky, but that Berger ordered and paid for all of it, the minor, however, stating what kind of liquor he wanted, and receiving the same directly from the hands of the bartender. The court said: “The evidence in this case would not warrant the' jury in finding that the liquor was either sold or given to the minor,” (by the defendant.) “The fact that the liquor was called for and paid for by Berger, and that the minor did not buy or pay for it, is not in dispute. . . . The character of the transaction is not changed by the fact that the kind of liquor wanted was left to the choice of the minor, or that it was received directly by him. A delivery to the minor did not make it a gift to him from the defendant. It was, indeed, a gift, but it was the gift of Berger.”
The same result was reached in Seigel v. People, 106 Ill., 89, where the indictment was for the same offense, under a like statute, and where the facts were substantially the same as in the case under consideration. We quote the reasoning of the court, as, in our judgment, it is unanswerable:
“There is nothing exceptional in a sale that distinguishes it from other contracts, as respects the concurrence or coming together of the minds of the parties; and so, in general, if not universally in cases of sales, parties are only bound by that to which they, in fact or in legal presumption, knowingly assent.
“If A proposes to buy of B, and B agrees to sell to A, B does not become bound to sell to C; and for like reason, if such contract be consummated as thus made, it must amount to a sale to A, and cannot be held to be a sale to C. Upon the plainest and most obvious principles of natural right, as respects private property, when the question is unaffected by a public duty, an individual may contract to sell to whom he pleases, and he cannot be obligated to a person, or by terms which he did not have, and could not reasonably have had, in contemplation, when he contracted. . . . We cannot extend the terms of a criminal act beyond its clear legal effect. We cannot construe the word ‘sell,’ in such a statute, to mean something different from its ordinary legal import, and we, therefore, only understand a prohibition against persons selling to minors, to extend to those who, in legal estimation, occupy the position, and are under all the obligations of contractors with minors. The prohibition against selling is only as to the excepted class, and no liability of a criminal nature is imposed upon the vendor on account of the motives with which the vendee shall purchase, or the uses to which he shall apply the liquor. . . .
“This view shows that the section under consideration may be easily violated, without the probability of punishment for the violation. But that only proves the necessity for its amendment. It furnishes no excuse for supplying, by judicial construction, what is palpably omitted.”
The language of the Ohio statute is: “It shall be unlawful for any person to buy for or furnish to any minor, to be drank by such minor, any intoxicating liquors,” etc. And it was decided, in State v. Munson, 25 Ohio St., 381, that a saloon keeper, who supplied liquor to a minor, to be drunk by him, was punishable, although it may have been purchased and paid for by another. But the Ohio act is much broader than ours.
The verdict is without evidence, and the directions to the jury were wrong.
Reversed and remanded for a new trial. | [
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Cockrill, C. J.
This case is controlled by the 'decision in Hot Springs Railway v. Williamson, ante. No distinction can be drawn, for the purpose of maintaining the action, between obstructing ■ the access to premises by the erection of an embankment in the street, as in that case, and by making a cut next to the plaintiff’s premises, as in this. Caledonia R’y v. Walker's trustees, 35 Moak, 177, and cases collected in the note.
Affirm. | [
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Smith, J.
Davis was convicted of an assault with intent to kill, upon an indictment which charges him with the murder of one Adams, committed by' shooting him with a gun, loaded with gunpowder and a leaden bullet. The bill of exceptions does not set out the testimony, but expressly admits that it was ■sufficient to prove the offense of which the jury found the defendant guilty. One of the directions to the jury was as follows:
“If you believe from the evidence that the defendant, in September, 1883, went to the office of the deceased, in Garland county, Arkansas, and there assaulted him with a deadly weapon, a loaded gun, by pointing it at him and demanding money, and did then shoot at the deceased with said gun,, with intent to kill him, but that the shot, so fired by the defendant, missed the deceased, you will find the defendant guilty of an assault with intent to kill and murder, although you may find that the defendant, after firing such shot, really and in good faith abandoned the conflict, and retreated to a place of apparent safety, and there shot and killed the deceased, in order to save his own life, or to protect himself from great bodily injury.”
And the court refused to charge that, under the indictment, the defendant could not be convicted of assault with intent to kill and murder.
Is the verdict responsive to the issue? Can a defendant, accused of murder, be convicted of an offense less than manslaughter, under any possible state of the proofs ?
It has been frequently décided that a person indicted for rape may be found guilty of an assault with intent to ravish, or of an assault and battery, or a simple assault. Commonwealth v. Drum, 19 Pick,, 479; Same v. Dean, 109 Mass., 349; State v. Johnson, 30 N. J. Law, 185; Prinderville v. People, 42 Ill., 217; Stephen v. State, 11 Ga., 225.
In State v. Scott, 24 Vt., 127, a conviction of an assault and battery, upon an indictment for manslaughter, was sustained. But a contrary result was reached in Wright v. State, 5 Ind., 527, where it is declared that, in a case of felonious homicide, the assault and battery are merged in the felony. See also, People v. Adams, 52 Mich., 24, to the effect that a criminal assault, resulting in death, is either murder or manslaughter, or else not punishable at all.
In McBride v. State, 7 Ark., 374, the prisoner was indicted for biting off the ear of one Hubble, with intent to maim him. He was acquitted of the mayhem, but found guilty of an aggravated assault. The court said: “Every attempt to commit a felony against the person of individuals involves an assault. Prove an attempt to commit such felony, and prove it to have been done under such circumstances that, had the attempt succeeded, the defendant might have been convicted of the felony, and the'party may be convicted of an assault with intent to commit such felony. If you fail in proving the intent, but prove the assault, the defendant may be convicted of the common assault.”
In Cameron v. State, 13 Ark., 712, a party indicted for an assault with intent to kill was convicted of a simple assault. And it was held, Chief Justice Watkins delivering the opinion of the court, “that upon an indictment for a felony, the accused may be convicted of a misdemeanor, where both offenses be- , long to the same generic class, where the commission of the 1 higher may involve the commission of the lower offense, and where the indictment for the higher offense contains all the substantive allegations necessary to let in proof of the misdemeanor.”
It 'was admitted that the rule at common law was different, but it was said that the rule owed its origin to certain peculiarities of the English law, never adopted in this country, and was not applicable to our condition. These decisions were made without any special statute on the subject, but upon general principles of American law. And they have been- frequently followed.' Guest v. State, 19 Ark., 405; State v. Cryer, 20 Id., 64.
But our code of criminal procedure, since enacted, contains the following provisions:
Mansfield’s Digest, Section 2288. “Upon an indictment for an offense, consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment.”
Sec. 228g. “The offenses named in each of the subdivisions of this section shall be deemed degrees of the same offense, in the meaning of the preceding section: First. All offenses of homicide. Second. All injuries to the person by maiming, wounding, beating and assaulting, whether malicious or from sudden passion, and whether attended or not with the intent to Till.....Sixth. An offense and an attempt to commit the offense.”
An assault with intent to kill, though a felony by our law, is not one of the degrees of homicide: but it is an attempt to •commit murder, and is virtually included in every murder that is committed with violence. All the elements of murder, except the actual killing, must conspire to constitute the crime. McCoy v. State, 8 Ark., 451; Cole v. State, 10 Id., 318; Lacefield v. State, 34 Id., 275.
Accordingly, in Stapp v. State, 3 Texas Court of Appeals, 138, under similar statutory provisions, the accused was indicted and tried for murder, and convicted of an assault with intent to murder. The circumstances were that the deceased received from the accused a stab, which was probably, but not •inevitably, fatal. Two days afterwards he died, but his death, according to the testimony, resulted solely from engorgement •of the lungs, caused by drunkenness and exposure.
We, therefore, conclude that, following the analogies oí previous decisions of this court, reinforced, as they are, by dir rect provisions of the criminal code, if the proof fails to establish all the allegations of the indictment, so as to warrant a conviction of the offense presented, but at the same time shows the defendant is guilty of a substantial crime, necessarily contained in the terms of the indictment, he may be found guilty of the minor offense. Cases may readily be supposed where any other rule would operate to defeat justice; as, if the proof should show that the person alleged to have been murdered was not in reality dead, or that he died after the lapse of more than a year and a day, or from other causes than the wounds inflicted by the accused.
But this doctrine has its limits, one of which is that the indictment must contain all the substantive allegations necessary to let in proof of the inferior crime. Childs v. State, 13 Ark. 204; Sweden v. State, 19 Id., 205; Bryant v. State, 41 Id., 359.
The present indictment is in the abbreviated Code form, and does not in terms charge an assault upon the person of Adams, as the common law form does. Yet, as it sufficiently charges murder in the second degree, and as the offense for which the prisoner was convicted is necessarily included in that charged,, it may suffice for the purpose, though there be no - words-specifically designating the offense so included.
Another limitation upon thepdoctrine of convicting for a lower offense, upon an indictment charging a higher one of the same class, is the duty of the State to prove the identity of the two offenses. A conviction cannot be had upon evidence of another offense of the same kind, committed on the same day, but not identical with it. Commonwealth v. Blood, 4 Gray, 31; Same v. Dean, 109 Mass., 349.
The charge of the court implies that there was evidence of' two distinct assaults—one unsuccessful, the defendant having missed his aim; and that he then withdrew from the conflict and retired in good faith to a place of apparent security, whither- he was pursued by Adams, and was there attacked in a manner to endanger his life, or menace him with great bodily harm, and that in defending himself he took the life of Adams. We are not'advised of the interval of time that separated the two assaults, but we infer they did not constitute one continuous transaction, although they were doubtless so closely connected that the first assault was the cause of Adams’ pursuit.
Now, it was the last assault committed by the defendant, which resulted in the death of Adams, that was the subject of this indictment. But from all guilt in the making of this assault, ■ the jury, by their verdict, have absolved the defendant. They have said that it was done in necessary self-defense, and was therefore justifiable. But they have recurred to the original attack upon Adams, which was not the ground of accusation and upon which no issue was joined, and have declared that it was murderous in design, notwithstanding it failed of execution.
The defendant has been acquitted of the felonious homicide. The verdict finding him guilty of assault with intent to kill, if intended to apply to the later assault, in the course of which Adams lost his life, is not reconcilable with common sense; for that was either murder, or manslaughter, or justifiable or excusable homicide. If it was meant to apply to a previous unsuccessful attempt to take the life of Adams, that was not the offeiise for which the prisoner was on trial. Doubtless he was, and still is, amenable to prosecution and punishment for- that assault; but he must be indicted for it.
Judgment reversed, and cause remanded, with directions that the defendant is not bound by the laws of the land to answer further to the present indictment, but he is to be held to await the action of the next grand jury of Garland county upon his case. And in the meantime he may be admitted to bail upon the execution of a bond in the sum of $1500, with security to the satisfaction of the sheriff of Garland county, conditioned to appear and answer any new indictment that may be found against him for assault with intent to kill the said Adams. | [
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Cockrill, C. J.
It seems to have been conceded throughout that Meyer, the Appellee, had a mortgage upon a pair of mules, and he got judgment for them in replevin against the Appellant. It was proved that the mules were offered at public sale to satisfy the mortgage debt by virtue of the award of arbitrators selected to settle a controversy between the mortgagor and mortgagee. The Appellant was the highest bidder at the sale, and the mules were separately struck off to him. The sale was for cash. The Appellant offered the person who had been appointed by consent'of the parties to conduct the sale, and who is termed a commissioner in the record, an order on a merchant in a neighboring town in payment of his bid, which he agreed to accept. Meyer came upon the ground a few minutes after the property was knocked off to the Appellant, and the latter informed him of his agreement with the commissioner and offered to go with him to the merchant and get the money if he was not satisfied with the order. Meyer replied that he had no doubt the order was good, but that the mules had sold for an inadequate price, and he intended to have them and would not accept money itself in payment of the bid. The commissioner delivered the mules to the Appellant and presented -the order to the merchant, who offered to pay him the money due on it. Thereupon the-commissioner surrendered the order and directed the merchant to hold it and the money until Meyer was ready to accept the latter. The money still remains in the merchant’s hands subject to the order of Meyer or the commissioner.
Meyer’s contention is that the title to the property did not pass to the Appellant because he failed to pay cash in accordance with the terms of the sale. It may be conceded that it was the Appellant’s duty to pay ready money to the commissioner on the acceptance of his bid, and that the commissioner, being an agent of limited authority, had no power to bind Meyer by accepting anything else in lieu of it. But Meyer is estopped by his conduct from setting this up to defeat the sale. While the transaction was in fieri and the Appellant still had the right to make good his bid by paying cash, the intended mode of payment was submitted to Meyer. He made no objection to the manner of payment, but announced that he would accept no pay because the amount of the bid was inadequate. The point that he makes now is an afterthought suggested by the pressure and exigencies of his case. Having put his objection specially upon the ground he selected, the Appellant and the commissioner had the right to presume that he waived objection to the mode of payment, and after he has lulled them to sleep upon that proposition it would' be manifestly unjust to permit him to mend his hold and take advantage of it.
In the case of Gould v. Banks & Gould, 8 Wend., 562, the plaintiff had a cause of action against the defendant for refusing to deliver a lot of books on demand. The court ruled that it was competent for the plaintiff to waive his right of action and accept the performance of the contract, and found that he had done so because when a tender was subsequently made him, to use the language of the court, “he then put his refusal to accept not on the former default or lapse of time, but solely on the ground that the books were unmerchantable. Upon well settled principles this was a waiver of all other objections to the tender, and if he was .mistaken in this the tender was good and no bar to the suit.”
The case of Duffy v. O'Donovan, 46 N. Y., 223, was a suit for specific performance of a contract to convey real estate. The plaintiff had until a given hour to make payment. He tendered a certified check and it was declined upon the ground that his time for payment had expired. On the trial it was urged that the tender was insufficient because not made in money. But the court say in answer to this: “ It was not refused for that reason. It was rejected because not made in time, and not because the certified check was not money or legal tender. It cannot now be objected that the party could not be compelled to accept a certified check in lieu of money. He waived his right to demand the money by not asserting it at the proper time. The objection to the tender could have been obviated and therefore was waived, not having been taken.”
The principle is applied in many classes of cases, but stated generally, it is this: When a person gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct on another and different consideration. This is especially applicable where the real objection, if made, could have been obviated in time, as in this case, by the adversary party. Railway v. McCarthy, 96 U. S., 258; Carman v. Pultz, 21 N. Y., 547; Atterson v. Bryant, 1 Comp., 409 W.; Leggett v. Mutual Life Ins. Co., 64 Barb., 23; Taylor v. Sprader, 48 N. Y., 664.
The Court erred in overruling the motion for a new trial. Let the judgment be reversed and the cause remanded for a new trial. | [
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Smith, J.
From the agreed statement of facts, it appears that the prisoner stole a horse in this state and fled to the Indian Territory, taking the horse with him. A commissioner of the United States issued a warrant, charging him with said crime, and upon this he was arrested by the marslial in the Territory and brought before the commissioner at Fort Smith. Upon his examination the prisoner stated that he was guilty of' the offense charged against him, and he was committed to jail for trial in the district court of the United States for the western district of Arkansas—a court having exclusive jurisdiction over offenses committed in the Territory.
Afterwards, and before any indictment had been returned into the federal court, or other proceedings had for his punishment, a warrant was issued by a justice of the peace of the county where the crime was committed, for the apprehension of the prisoner, and the judge of the western district, by his order in writing, granted at chambers, directed the surrender of the prisoner to the state authorities. He was taken by the sheriff to the jail of the proper county and there confined until, the next term of court, when he was indicted for the larceny. He interposed a plea to the jurisdiction, alleging that the federal court, having first acquired possession of the case, had exclusive jurisdiction. And his plea being overruled, he went, to trial upon the plea of not guilty, and was duly convicted and sentenced to imprisonment in the penitentiary.
Although the theft was complete in Arkansas, yet the carrying of the stolen horse into the Territory, with the con tinuing intent to appropriate the property to the prisoner’s own use, might be treated as a new trespass and larceny. And in this view he might be indicted and punished by the courts of either jurisdiction. And in cases of concurrent jurisdiction, the tribunal which first obtains possession of a cause will not be interfered with.
But no trial has been had in the federal court, and no prosecution is pending there. The confession of his guilt in the preliminary investigation before the commissioner amounted to no more than a waiver of examination. By the delivery of the prisoner to our officers, the United States has sufficiently manifested its election not to prosecute for this offense. The case is the same as if the prisoner had been released before the trial, and had then been re-arrested for the same offense by a peace officer of this state.
The court trying a party for crime committed within its jurisdiction will not stop to inquire into the manner or circumstances of his capture in a foreign country. The legality or illegality of his arrest does not affect the' jurisdiction of the court, nor the guilt or innocence of the prisoner. Ex parte Scott, 9 Barn. & Cress., 446; Kerr v. People, 110 Ill., 627; and cases cited.
But there is no reason to suppose, from anything contained in the record, that the prisoner’s arrest in the Indian country was an abuse of the process of the courts of the United States—a mere pretense or trick to bring his person within the jurisdiction of the courts of Arkansas, in the absence of a láw of* treaty for the extradition of fugitives from justice. He was arrested by a duly authorized officer, upon a lawful writ, and for a crime of which the United States district court for the western district of Arkansas might have, taken cognizance. That for any cause it has chosen not to take such cognizance, but to leave the prisoner to be dealt with by the courts of that state whose laws he has violated, is no reason why he should go unwhipt of justice. He is manifestly guilty, and there is no danger that he will be twice punished for the same offense.
Affirmed. | [
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Smith, J.
The grand jury of Howard county preferred a joint indictment against the appellants and Monroe Kuykendall for the murder of Frank Ward. On their application the venue was changed to Pike. Kuykendall died before the trial came on. ,The other two defendants were separately tried and convicted, the one of murder in the first degree, and the other of murder in the second degree.
A reversal is now claimed because the record does not affirmatively show that they were present in court when their petition for a change of venue was granted.
The supreme court of Missouri, in State v. Elkins, 63 Mo., held that an order changing the venue was not such a substantive step in the progress of the cause as required the personal presence of the defendants in court when it was made. But the previous decisions of this court have been extremely jealous of the rights of the accused on this point. And it is certainly the better practice that he be brought into court upon such an occasion. However, we should not reverse the judgment for this cause, as it is plain that the defendants lost no advantage and could not possibly have been prejudiced by their absence. The court did nothing in the premises except to grant their own request. Bearden v. State. 44 Ark., 331.
In the impaneling of the trial juries in the two cases, sundry exceptions were reserved to the rulings of fhe court in passing upon the qualifications of persons who were tendered as jurors. In the case of Henry Polk, these exceptions become immaterial, as it appears that the panel was completed before the defendant had exhausted his peremptory challenges. But Sylvester was forced to challenge peremptorily, jurors who were offered, and who, as he alleges, were laboring under actual bias, but whom the court nevertheless pronounced to be competent. He thus exhausted his challenges before a full jury was obtained, and after such exhaustion was compelled to accept such talesmen as he could not challenge for cause.
The nature of the exceptions will appear from the following extract from the bill of exceptions:
“During the said drawing John T. Anderson, being one of the names drawn by the clerk, stated on his voire dire that he had heard one of the state’s witnesses testify on the trial' of Henry Polk last week, jointly indicted with this defendant for this offense, and that said testimony had made some impression on his mind, but he had formed no-opinion as to the guilt or innocence of this defendant; and the court ruled and refused to allow him to answer the question of defendant as to whether it would require evidence to remove said impression from his mind; to which ruling and refusal the defendant at the time excepted and challenged-the juror. And also the name of J. B. Sparks, who stated, also upon his voire dire, that he had formed an opinion as to the guilt or innocence of the defendant, from having heard a statement made by a person who purported to state the facts, and that it would require evidence to remove said opinion; and the court, holding him to be a competent juror, refused to allow him to answer the question of defendant as to whether he could go into the trial as a juror prepared to give the prisoner the benefit of the presumption of innocence before he heard any of the testimony; to which ruling of the court the defendant excepted and challenged the juror. And J. R. Rounds, another name drawn, was asked by the defendant * if he could go into the jury-box presuming the defendant to be innocent,’ and ‘ if, from his knowledge of his own mind, he believed himself an unbiased, unprejudiced, qualified juror;’ and the court held and ruled that he should not answer the questions ; to which holdings and rulings the defendant at the time excepted and challenged the juror. And P. A. Parnell, G. W. Moore and W. D. Orrick, drawn by the clerk as aforesaid, who severally stated that they would, if taken, go into the jury-box with an opinion as to the innocence or guilt of the accused which it would require evidence to remove from their minds. The court held and determined that they were competent jurors, to which holding and determination, the defendant at the time excepted and challenged the jurors. And all these several persons, in answer to the question whether they could as jurors give the defendant a fair and impartial trial, without prejudice to his rights, notwithstanding what they had heard, severally answered that they could.”
Our bill of rights (Constitution of 1874., Art 2, Sec. 10,) guarantees to all persons accused of crime the right to a trial by an impartial jury. Here four persons were declared to be competent to sit as jurors in a capital case, whfen, by their own statements, it appeared that they had formed an opinion as to the guilt or innocence of the defendant, which it would require evidence to remove. In other words, they admitted that they had prejudged the case and would go into the jury-box with a leaning for or against the prisoner. That a juror has formed any opinion in such a case renders him prima facie incompetent, and it is for the state to show that such opinion is based on rumor and not of a nature to influence his conduct. But one who leaps in advance both of evidence and the law, and settles in his own mind the question of guilt, is not fit to be a juror in the cause. The juror must be indifferent between the state and the prisoner. The burden of eradicating preconceived opinions upon the merits ought not to be cast upon either party. The fact that the jurors further said that they could try the case impartially was entitled to no consideration, in the face of their admissions that their minds were pre-occupied by impressions of the case. No reliance is to be placed on such declarations. Stewart v. State, 13 Ark., 720; Meyer v. State, 19 Id., 156; 1 Bishop Cr. Pro., Sec. 910; People v. Gehr, 8 Cal., 359; People v. Weil, 40 Id., 268.
In Benton v. State, 30 Ark., 328, and in Wright v. State, 35 Id., 639, the prisoner did not exhaust his challenges and, therefore, no injury accrued. In Dolan v. State, 40 Id., 454, the opinions were formed from reading the newspapers and were not so deep-seated as to require evidence to remove them. What is said in Casey v. State, 37 Ark., 67, goes further than any case in our reports on this subject. It does not appear from the report of that case that the objectionable jurors actually sat upon the trial, or that the prisoner exhausted his challenges in getting rid of them. But the intimation that it is in the discretion of the circuit court to admit a juror who states that he has formed such an opinion about the case as can be removed only by evidence, provided he further states that he can ■ give the prisoner a fair trial, and that such discretion is not reviewable, is erroneous.
We are also of the opinion that the prisoner was unduly hampered by the court in his efforts to require the jury to purge themselves of any taint of bias or prejudice. The object of the examination of jurors, touching their qualifications, is to ascertain whether they are impartial. The court is the trier and should permit any question to be answered which seems to be propounded in good faith for the purpose of sifting the truth and searching the consciences of the jurors. .
On the trial of Sylvester Polk certain declarations made by Kuykendall, implicating the defendant, were put in evidence over objections. Their admission cannot be justified by any rule of evidence known to us. They were made in the absence of the defendant and after all the parties who were suspected of complicity in the murder had been arrested. They were not admissible even upon the theory that a conspiracy had been established; for they were not made during the pendency of the criminal enterprise and in furtherance of its objects. Consequently they were merely narrative of past occurrences and hearsay. 1 Gr. Ev., Secs, 110, 111.
On the trial of both defendants certain statements, in the nature of confessions, made by Henry Polk, were admitted against objections. Any voluntary statement made by Henry, and tending to show he knew something of the matter, was proper evidence against him. And if made in the presence of Sylvester, and uncontradicted by him, they are also receivable against him, as a tacit admission inferred from his acquiescence in the verbal statement of another. But such implied admissions are to be received with great caution, affording, at best, but a weak presumption of guilt. Ford v. State, 34 Ark., 654; Williams v. State, 42 Id., 382. And in this connection we observe that the court below attached too much consequence to these statements; for in its fifth instruction, given at the instance of the state, it told the jury to treat and consider them as if made by Sylvester himself. This was putting it too strongly.
Upon both trials the state was permitted to read an affidavit for continuance made by all of the defendants before severance, and then to prove by witnesses that the facts stated in it were false. This evidence had no tendency to prove the issues, but only to show that the prisoners had committed perjury in swearing to the motion. It was, therefore, calculated to prejudice them in the minds of the jurors and should have been excluded. Burris v. State, 38 Ark., 221.
It was proved on both trials that, on the night after Ward disappeared, Sylvester rode the missing man’s horse down into Sevier county, thirty-five miles distant, where he exchanged it for a mare, but left the mare there; and that Henry afterwards went for the mare, brought her to his own home and sold her to a neighbor. Ward’s horse was afterwards recovered and identified and the mare that had been given in exchange was restored to her proper owner. Possession by the accused of the fruits of a crime raises a presumption of guilt. But it is insisted that the testimony fails to trace Ward’s horse to the possession of Henry Polk, or to connect him sufficiently with the transaction by which Sylvester acquired such possession. But the circumstance that the horse is found in the hands of Sylvester, who is unable to give any explanation of his possession consistent with his innocence, taken in connection with the unaccountable disappearance of Ward, affords some slight proof that Ward met with- foul play. Both of the defendants had the opportunity to commit the crime if one was committed. And the fact that Henry assumed to control and dispose of the mare that was received in exchange, is proper to be weighed by a jury in determining his participation in the act by which Ward was deprived of his property, as well as of his life.
The juries, which tried the two cases respectively, were told by the court that, if the defendants had failed to prove the de fense of alibi set up by them, and if they should believe the' evidence adduced in support of it was fabricated, this was a circumstance of great weight against them. The admissibility of testimony is a question for the court. After it is admitted, its effect, and the inferences to be drawn from it, are for the jury to determine exclusively in the first instance. Circuit judges cannot, therefore, be too cautious in their charges, to avoid telling the jury what degree of importance should be attached to a particular kind of evidence, or to the absence of it. It is for the jury, and not the court, to say that evidence makes for or against a party, or that it is of great weight, or little weight, or no weight at all.
As the cases must undergo re-examination, we have purposely refrained from commenting on the testimony, further than was necessary to elucidate the points upon which, as we conceive, the court fell into error.
The judgments are reversed and new trials are awarded in both cases. | [
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Smith, J.
The appellant was convicted of murder in the second degree; and an appeal was allowed by one of the judges of this court, upon a doubt whether, under the facts proved, the offense amounted to more than manslaughter. An altercation had arisen between the parties, in a country store, after nightfall; growing out of a disputed account; and the proprietor had ordered the disputants to leave the store. The appellant was the first to go out; but stationed himself near the door, with a stick in his hand. Trimble, the deceased, who was • partially drunk, attempted to arm himself with an iron weight, but was prevented by the storekeeper. When both men were on the outside, an encounter with the fists ensued, and Trimble was getting the better of his adversary when the bystanders separated them. They. continued to quarrel, however, and the appellant accused Trimble of relying upon his knife. The knife was then given up into the hands of one of the witnesses. The appellant seems to have clung to his stick —a stout oaken club, two and a half feet long, with a knot on the end of it. After swearing at each other for a while, Trimble threw his coat, of which he had divested himself when he gave up his knife, over his arm, said to the appellant: “Go away from me and let me alone. I don’t want you hereafter to cross my path and I won’t cross yours; ” and was in the act of retiring homeward, when the appellant renewed the combat and killed Trimble with two blows administered with the stick.
From the circumstances detailed and, particularly, from the unlawful use of a deadly weapon, the jury were justified in finding malice—that combination of wrongful deed and mental culpability which distinguishes murder from manslaughter. No doubt the appellant was laboring under an excess of passion; but the provocation or cause of his excitement was not such as the law deems adequate or reasonable. And it is certain that he could have declined the further combat without danger to himself. 2 Bishop Cr. Law, Secs. 675, 680, 697, 700; Mansf. Dig., Secs. 1519, 1533.
The facts in evidence were similar to those in Stanton v. State, 13 Ark., 317, where a verdict of murder in the second degree was upheld, Chief Justice Watkins delivering the opinion of the court. The jury were fairly charged and there is no question 'worthy of. notice except as to the gradé of the offense.
Affirmed. | [
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Eakin, J.
The appellant is a road overseer, tried and convicted for the offense of failing to keep his road in repair as required by law. There was a motion for a new trial, bill of exceptions and appeal.
The record proper shows that, upon issue joined, a jury was called. “ Whereupon John McDonald and eleven others, good and lawful jurors of the body of Desha county, for the Watson district, who were impaneled.” The word “ came ” doubtless understood. The bill of exceptions shows that the jurors were of the regular panel, but were not specially sworn in the case.
This was error, and is made one of the grounds of the motion for a new trial.
It is provided in our statutes regarding criminal procedure, that in cases of misdemeanor the jury shall be selected “in the manner provided by law for the formation of a jury in a civil action.” Mansf. Dig., Sec. 2220. These jurors, for civil cases, are selected and impaneled at the beginning of the term, and sworn to try “ each and all of the issues, inquisitions and other matters submitted to you respectfully as jurors ” at that term of the court. Ib. Sec. 4006. It is provided, however, in the next section (4007) that this oath shall be binding upon them in all civil cases. So that no separate or additional oath is required in civil actions.
To select jurymen is to designate the parties who shall act as jurors and compose the panel. They are to be called and impaneled in misdemeanors out of the regular list of petit jurors for the term, if enough can thus be had, just as if the case were a civil one. In civil cases also a jury may be selected by the special mode of striking. Juries in felonies are selected by drawing, and special examination on voire dire. The design of the statute is to authorize the selection of jurors in misdemeanor cases, in any mode that would be proper in a civil case, and this clause has no application to the oath, which is administered after the selection.
An oath is prescribed by sec. 2248, to be taken by the jury, however selected, m all criminal cases, regardless of grade. It obligates them to try the particular issues of the special case ^between the State of Arkansas and the defendant. The record should show that the jurors were thus sworn, and this record fails to do so. The bill of exceptions does not aid the record proper, even if the matters thereby imported were proper to be included in a bill of exceptions. For this there must be a reversal.
It is expedient, nevertheless, to notice other points presented by the transcript.
The justice of the peace for the township who made the apportionment of the hands, testified that defendant had been appointed overseer of the road in question, and had, as such overseer, made application to him for the apportionment. Defendant objected to this testimony on the ground that the original record of his appointment as overseer should be produced. ’ The objection was properly overruled. Public policy dispenses with the proof, generally, of the original appointment and qualification of officers, who assume to act as such, and are recognized as such by other officials with whom they have business. They are officers de facto. Persons may safely do business with them as such, and they cannot complain if they are held to the same accountability as if they were rightfully what they assumed to be.
It is further objected against the verdict that no proper apportionment of road hands was ever made to the defendant, There is a justice of the peace appointed in each civil township, for the apportionment of the road hands to the working of the several portions of public roads which run through his .township. He is required to make out “ two lists of the hands apportioned to each overseer, one for the overseer himself, and •one to be filed with the clerk.” For neglect, of this duty he is liable to a fine in any sum not less than ten dollars. It is made ■the duty of the overseer to warn every person so appointed, and he is empowered to put down on his list, also, “the names” of all persons subject to road duty that he may find in his road district, not apportioned to some other overseer. Mansf. Dig., Secs. 5904, 5908, 5922-3,5925. The evidence shows that the justice, in this case, had made a list of the plantations along the road, and had apportioned all the hands on said plantations, .subject to road duty, without naming the hands. The defendant refused to receive this, or to work the road at all unless a * list of names were given him, and in fact did not. The list so made out by places was read to the jury against objections of defendant, and the court, in reference to this point, instructed the jury, in effect, that the law did not require the apportionment to be made by names, but that it was sufficient to designate all persons or hands within a certain described territory on the liné of the road.
The word “list” means properly a simple series of names, etc., in a brief form (see Webster in verb.) and it is a list of the things ñamed. The paper furnished by the justice is a good list of plantations, but scarcely comes up to the idea of a list of hands, although it furnishes data from which a list of hands might be made. The law seems to contemplate a list of names, for the overseer is empowered to put down on the list furnished by the justice the names' of all others, etc. It is no more onerous on the justice to do this than it would be on the overseer, which he must do in order to give the warning, if the justice has not done it. It is his guide in warning. We think the honorable circuit judge was mistaken in his views of the list, and ought not to have allowed it-to go to the jury. But its exclusion would not have excused the defendant. His duty to work the road in accordance with law, and with the best means within his reach did not depend upon the apportionment. He had the power himself to make a list of all persons in the district not elsewhere apportioned. If he were put to extra trouble by the fault or misconception of duty of the magistrate, the public should not suffer. The justice was punishable..
It may be worth repeating, that a motion for a new trial cannot speak as to facts, although this court has often asserted it. >phe facts upon which the motion is grounded must be set forth aliitnde in the bill of exceptions, unless properly appearing in the record. Issues of fact cannot be made in a motion for a new trial. The motion should be made on something done and appearing outside of the motion. The motion in this case is partly based on facts which do not appear.
Because the trial jury was not sworn, it was error to refuse the-motion for a new trial.
Reverse the judgment, and remand with the usual instructions in such cases. | [
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Paul Danielson, Justice.
Appellant Wilkins and Associates, Inc. (Wilkins), appeals the order of the Pulaski County Circuit Court, granting summary judgment in favor of appellee Vimy Ridge Municipal Water Improvement District 139 (Vimy Ridge). Wilkins’s sole point on appeal is that the circuit court erred in granting Vimy Ridge’s motion for summary judgment because the statute of limitations for collecting an assessment of special improvement district taxes from 2001 had expired.
Vimy Ridge filed a complaint for foreclosure against several defendants, including Wilkins, on October 1, 2004, claiming that the assessments (tax, penalty, and costs), in the form of municipal improvement district taxes, were delinquent for certain parcels of land located within the district. The original complaint sought payment of the delinquent taxes from Wilkins for the tax years 2001, 2002, 2003, and 2004.
On August 1, 2005, Vimy Ridge filed its separate motion for summary judgment as to Wilkins, relying on the certified copy of the delinquent assessment against the lands owned by Wilkins, as prepared by the Pulaski County tax collector. The circuit court held a hearing on the summary-judgment motion on December 12, 2005. Wilkins originally did not dispute that it had not paid the delinquent taxes on certain parcels of its property for the years 2002, 2003, and 2004; therefore, on or about December 12, 2005, Wilkins paid the amounts assessed for those tax years. However, the assessment for 2001 remained an issue. The circuit court granted summary judgment to Vimy Ridge and issued a foreclosure decree as to Wilkins on March 31, 2006.
While final judgment as to Wilkins is clear, the original complaint listed several defendants. A review of the record reveals final judgments as to W.M. Bearden, Phillip Glenn, LenonBrewer, Ronny and Rebecca Patterson, Charles Shaw, and Edward Sumers; however, the record is silent with respect to any disposition as to Coy Dean, Mark Wilcox, John Doe(s), and Jane Doe(s).
Rule 54(b) of the Arkansas Rules of Civil Procedure provides in pertinent part:
[A]ny judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
Ark. R. Civ. P. 54(b)(2) (2006).
We are barred from considering this appeal under Rule 54(b) due to the lack of a final order since the claims against multiple parties may remain viable. Although this issue was not raised by either party, the question of whether an order is final and appealable is a jurisdictional question that this court will raise sua sponte. See Roe v. Ark. Dep’t of Correction, 367 Ark. 348, 240 S.W.3d 127 (2006). This court has specifically held that where John Doe claims have not been determined, dismissal on the basis of Rule 54(b) is appropriate. See id. Accordingly, we hold that the order from which Wilkins appeals is not a final, appealable order, and the appeal must be dismissed.
In addition to the Rule 54(b) problem, the addendum prepared by the appellant appears to be deficient as it does not contain a copy of the city ordinance that is mandated by Arkansas Code Annotated § 14-90-801 (Repl. 1998) to provide for the payment of assessments. We have previously required that an appellant provide relevant city ordinances in his addendum. See Vanderpool v. Pace, 350 Ark. 460, 87 S.W.3d 796 (2002). Arkansas Supreme Court Rule 4-2(b)(3) (2006) provides that this court may address a deficiency at any time if an abstract or an addendum is deficient such that we cannot reach the merits of the case.
Dismissed without prejudice. | [
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Annabelle Clinton Imber, Justice.
This is an appeal from the circuit court’s order of dismissal in favor of Appellees Dr. Robert G. Bishop (“Dr. Bishop”), Dr. David A. Dias (“Dr. Dias”), and Van Burén H.M.A., Inc., d/b/a Crawford Memorial Hospital (“Crawford Memorial Hospital”). Because the circuit court’s order is not a final, appealable order as required by Arkansas Rule of Appellate Procedure — Civil 2 and Arkansas Rule of Civil Procedure 54(b), we dismiss the appeal without prejudice.
Appellantjames Phillip McKinney (“McKinney”), as special administrator of the estate of Elijah James McKinney, deceased, filed a complaint against Appellees and John Does 1-10, alleging survival and wrongful-death claims based on ordinary negligence, medical malpractice, and the violation of Ark. Code Ann. § 12-12-507 (Supp. 2005), which governs reports of suspected abuse or neglect. McKinney also sought a declaratory judgment declaring certain sections of Act 649 of 2003, codified at Ark. Code Ann. §§ 16-55-201 through 16-55-220 (Repl. 2005), “unconstitutional or otherwise invalid.”
Pursuant to Rule 12(b) of the Arkansas Rules of Civil Procedure, Dr. Bishop and Crawford Memorial Hospital each filed a separate motion to dismiss McKinney’s complaint, alleging that he failed to meet the requirements of Ark. Code Ann. § 16-114-209 (Repl. 2006). According to that statutory provision, an affidavit containing a medical expert’s opinion as to the standard of care in the particular specialty, the breach of that standard, and the resulting injury, must be filed by the plaintiff within thirty days of filing a medical-malpractice action; otherwise, the action shall be dismissed by the circuit court. Ark. Code Ann. § 16-114-209. Pursuant to Rule 56 of the Arkansas Rules of Civil Procedure, Dr. Dias filed a motion for summary judgment, also alleging that McKinney failed to satisfy the requirements of section 16 — 114— 209.
Following the filing of an amended complaint and a hearing on the motions, the circuit court entered an order of dismissal on May 24, 2006. The order states in relevant part:
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the Motions to Dismiss filed on behalf of each of the respective Defendants in this case, Dr. Robert G. Bishop, Dr. David A. Dias, and Van Burén, H.M.A., Inc. d/b/a Crawford Memorial Hospital, should be and hereby are granted and the Plaintiffs Complaint and cause of action is DISMISSED in its entirety with prejudice.
McKinney subsequently filed a motion for clarification and reconsideration, requesting that the circuit court clarify whether the dismissal was with or without prejudice. In the event the dismissal order was intended to be with prejudice, McKinney requested a ruling on each issue raised and argued so the issues would be preserved for appeal. On June 26,2006, the circuit court entered an order denying McKinney’s motion for clarification and reconsideration. More specifically, the circuit court found that the required affidavit was not timely filed and that the amended complaint did not relate back to the filing of the original complaint. With regard to McKinney’s constitutional challenge, the circuit court made the following rulings: Act 649 of2003 is not special legislation in violation of Amendment 14 of the Arkansas Constitution; the Act does not deny McKinney due process of law and equal protection of the laws as guaranteed by the Arkansas and United States Constitutions; the Act does not violate the “open courts” provision of the Arkansas Constitution; the Act does not violate the separation-of-powers doctrine of the Arkansas and United States Constitutions; the Act is not in violation of the supersession rule adopted by the Arkansas Supreme Court; and the Act is not in violation of Act 38 of 1973, codified at Ark. Code Ann. § 16-11-302 (repealed 2003). Furthermore, the circuit court upheld the constitutionality of the provisions of Act 649 of 2003 fixing venue in Crawford County and requiring McKinney to file an affidavit signed by an expert in a similar area of medical care as each defendant medical care provider. From that order, McKinney now appeals.
Arkansas Rule of Civil Procedure 54(b) provides in relevant part that
any judgment, order, or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
Ark. R. Civ. P. 54(b)(2) (2006) (emphasis added). While none of the parties raise this issue, the question of whether an order is final and subject to appeal is a jurisdictional question that this court will raise sua sponte. See Jones v. Huckabee, 363 Ark. 239, 213 S.W.3d 11 (2005).
In the instant case, there is neither a final order as to John Does 1-10, nor is there a 54(b) certification. Accordingly, we conclude that McKinney’s claims against John Does 1-10 are still pending. Because there is not a final order as to these defendants nor a Rule 54(b) certification, we do not have jurisdiction to hear this case and we dismiss this appeal without prejudice so that the circuit court may enter an order as to the remaining defendants, John Does 1-10. See Jones v. Huckabee, supra; Moses v. Hanna’s Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003); Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998).
Appeal dismissed without prejudice. | [
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Jim Hannah, Chief Justice.
Appellants Edgar and Daisy Recinos appeal the order of the Sebastian County Circuit
Court dismissing with prejudice their wrongful-death suit against Appellees Misty M. Zelk, M.D., and Arkansas Children’s Hospital. We find no error; therefore, we affirm.
This wrongful-death action relates to the care and treatment provided to Jennifer Elizabeth Recinos, who died on March 16, 2000. At 3:18 p.m. on March 18, 2002, Appellants petitioned the Crawford County Circuit Court to open the estate of Jennifer Elizabeth Recinos and to appoint Edgar Recinos as special administrator of the estate. At 4:45 p.m. that same day, Appellants filed a complaint in Sebastian County Circuit Court alleging wrongful death and styling the case as “Edgar and Daisy Recinos, Individually and as Parents and Next Friends of their Minor Children, All Statutory Beneficiaries and Heirs at Law of Jennifer Elizabeth Recinos, Deceased.” The statute of limitations ran on that day. Mr. Recinos was subsequently appointed special administrator on March 19, 2002, and special letters of administration were issued on April 17, 2002.
Appellees then filed a motion to dismiss, contending that Appellants had failed to join all of the heirs at law as parties to the action and that Appellants’ claims were therefore barred by the statute of limitations. In an order entered December 12, 2002, the circuit court denied the motion, finding that, by bringing the action “individually for the ‘heirs at law’ of the deceased,” Appellants had satisfied the requirements of the wrongful-death statute. In addition, the circuit court found that the “record reflects that there was no appointed personal representative.”
On October 22, 2003, Appellants nonsuited the case. Mr. Recinos, in his capacity as special administrator, was never substituted as the plaintiff prior to the nonsuit. Appellants refiled the case on October 20, 2004, again styling the case as “Edgar and Daisy Recinos, Individually and as Parents and Next Friends of their Minor Children, All Statutory Beneficiaries and Heirs at Law of Jennifer Elizabeth Recinos, Deceased.” Appellees filed a motion to dismiss, based on Appellants’ failure to bring the action in the name of the personal representative as required by Ark. Code Ann. § 16-62-102(b) (Repl. 2005). In response, Appellants contended that, even though a personal representative had been appointed, the heirs at law were the proper parties because only the same plaintiff may take advantage of the savings statute, Ark. Code Ann. § 16-62-102(c)(2) (Repl. 2005). The circuit court agreed with Appellees and dismissed Appellants’ complaint with prejudice by order dated November 28, 2005. This appeal followed.
In reviewing a circuit court’s decision on a motion to dismiss, this court must treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id.
Pursuant to Ark. Code Ann. § 16-62-102(b), every action for wrongful death “shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.” “If a nonsuit is suffered, the action shall be brought within one (1) year from the date of the nonsuit without regard to the date of the death of the person alleged to have been wrongfully killed.” Ark. Code Ann. § 16-62-102(c)(2). The wrongful-death statute is a remedial statute that should be interpreted liberally with a view toward accomplishing its purposes. St. Paul Mercury Ins. Co. v. Cir. Ct. of Craighead Cty., 348 Ark. 197, 73 S.W.3d 584 (2002). However, with respect to whether such a cause of action is stated, the action is one that is of statutory creation, and is in derogation of or at variance with the common law, and therefore, we construe the statute strictly. Id.
Appellants argue that, despite the fact that Mr. Recinos had been appointed as personal representative at the time the suit was refiled on October 20, 2004, they were required to refile the action exactly as they had filed it initially in order to avail themselves of the benefit of the savings statute. In support of their argument, Appellants cite Smith v. St. Paul Fire & Marine Insurance Co., 76 Ark. App. 264, 64 S.W.3d 764 (2001). In that case, the decedent’s heirs brought wrongful-death and survival claims within the time allowed by the two-year statute of limitations and then later nonsuited the case. A second suit was brought within the one-year grace period of the savings statute; however, this second suit was filed by the decedent’s administratrix. The court of appeals upheld the dismissal of the second suit, stating:
In Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997), our supreme court held that the savings statute, Ark. Code Ann. § 16-56-126, could not save wrongful-death and survival claims when the current parties had not been parties to the first suit that had been nonsuited. The court emphasized that the statute provided that if “ ‘the plaintiff therein suffers a nonsuit’ then ‘the plaintiffmay commence a new action within one (1) year.’ ” Murrell, supra at 125, 952 S.W.2d at 156 (emphasis in original). The court barred the wrongful-death claims of Murrell’s children because the children were not parties to the first action that had been nonsuited.
In the case at bar, the plaintiffs to the first suit were the heirs of Lydia Shepherd. The plaintiff to the second suit was the purported administratrix of the estate. The heirs had one year from the nonsuiting of the original complaint on February 19,1999, to refile their wrongful-death claim, but they failed to do so. The savings statute, however, would only extend the time to file for the additional year to the heirs, not to the administratrix. The heirs did not refile the wrongful-death claim prior to expiration of the savings period; thus, it is now time-barred.
Smith, 76 Ark. App. at 269, 64 S.W.3d at 768.
Appellants also cite Tatus v. Hayes, 79 Ark. App. 371, 88 S.W.3d 864 (2002). In that case, the decedent’s heirs brought a wrongful-death action against appellees within the time allowed by the two-year statute of limitations. A personal representative was appointed and, subsequently, the heirs nonsuited their case. Thereafter, the personal representative refiled the case. The court of appeals held that the refiling of the case by the personal representative was barred by the statute of limitations because the savings statute only extended the time to file to the heirs, not to the personal representative.
Appellants aver that they did the only prudent thing there was to do — they refiled the action exactly as they had filed it initially. Appellants state that, it is clear that in those cases, if the heirs and statutory beneficiaries had refiled the complaints, they would have been allowed to proceed. Otherwise, Appellants contend, if the heirs at law and statutory beneficiaries filed a wrongful-death suit, took a nonsuit, and a personal representative was subsequently appointed, the action could not be refilled under the savings statute. Appellants state that the case would end with the appointment of a personal representative, a result that Appellants claim the General Assembly never intended.
For their part, Appellees dispute Appellants’ contention that they were caught in a “Catch-22 situation,” and they argue that even if they were, it was one of their own creation. In contrast to Appellants’ argument that the decisions in Smith and Tatus created a trap to which they fell victim, Appellees contend that it is Appellants themselves who are to blame for their failure to comply with the mandatory requirements of Ark. Code Ann. § 16-62-102(b).
Appellees argue that, once a personal representative was appointed, Appellants could no longer file suit as heirs at law of the decedent. We agree. The decedent’s heirs at law may not file a wrongful-death suit where a personal representative has been appointed. See Ark. Code Ann. § 16-62-102(b); Davenport, supra. Here, once Mr. Recinos was appointed personal representative, he was the only party who could file the wrongful-death suit on behalf of the heirs at law. Edgar and Daisy Recinos, individually and as parents and next friends of their minor children, all statutory beneficiaries and heirs at law, had no authority to refile the complaint. Rather, Mr. Recinos, in his capacity as special administrator, was the proper party to refile the case. Nevertheless, Appellants failed to substitute Mr. Recinos, special administrator, as a party to the case prior to nonsuiting. Rule 17 of the Arkansas Rules of Civil Procedure provides in relevant part:
(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator... or any person authorized by statute to do so may sue in his own name without joining with him the party for whose benefit the action is being brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
In Arkansas, only a real party in interest may bring a cause of action. St. Paul Mercury Ins. Co. v. Craighead Cty., supra. The real party in interest is considered to be the person or corporation who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery. Id. Here, at the time the suit was refiled, Mr. Recinos, in his capacity as special administrator, was the only person who had a right to discharge the claim. See Ark. Code Ann. § 16-62-102(b). Appellants filed the original complaint on March 18, 2002, and nonsuited the case on October 22, 2003. Clearly Appellants had a reasonable amount of time — more than one and one-half years ■ — ■ prior to the nonsuit to substitute Mr. Recinos, special administrator, as a party to the case.
Finally, we are not persuaded by Appellants’ attempt to distinguish between the wrongful-death savings statute, Ark. Code Ann. § 16-62-102(c)(2), and the general savings statute, Ark. Code Ann. § 16-56-126(a)(l) (Repl. 2005). Appellants state:
The wrongful death savings statute refers to “the action,” and the general savings statute refers to commencing “a new action.” Applying the rule of strict construction to the wrongful death savings statute, it is a continuation of “the action” as opposed to the “commencement of a new action” under the general savings statute. It was, therefore, appropriate for Appellants to refile the case notwithstanding the appointment of a personal representative in the meantime because Appellants appropriately brought the action initially when there was no personal representative.
As previously stated, Ark. Code Ann. § 16-62-102(b) provides that a wrongful-death suit must be brought by a personal representative, if one has been appointed. Because a personal representative had been appointed, Appellants could not file their action as heirs at law and statutory beneficiaries.
Affirmed.
This court has long held that the two-year statute of limitations period for medical-malpracticeactionssetforthinArk.CodeAnn.§ 16-114-203 (Supp.2001) applies to all causes of action for medical injury, including wrongful-death actions under Ark. Code Ann. § 16-62-101 (Repl. 2005). See Johnson v. Greene Acres Nursing Home Ass’n, 364 Ark. 306, 219 S.W.3d 138 (2005). In this case, the statute of limitations expired on March 16, 2002, a Saturday; thus, the suit was timely commenced on March 18,2002. See Ark. R. Civ. P. 6(a).
Appellees continue to argue in their brief on appeal that the circuit court erred in denying their motion to dismiss because Appellants failed to satisfy the requirements of the wrongful-death statute. However, the issue concerning the validity of the original complaint is not before us in this appeal. Therefore, we will not address Appellees’ argument.
Appellees were unaware of the probate proceedings in Crawford County. | [
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Per Curiam.
Appellant John Abraham Stephens, by and through his attorney, has filed a motion for rule on clerk. The court treats these motions as a Motion for Belated Appeal. His attorney, David L. Dunagin, states in the motion that the record was tendered late due to a mistake on his part.
Because Dunagin has admitted fault, this motion is granted pursuant to McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Appellant Melvin Dukes, an inmate incarcerated in the Arkansas Department of Correction (“ADC”), filed a pro se petition for declaratory judgment and writ of mandamus in Jefferson County Circuit Court on November 2, 2005. Appellant filed an amended petition on December 12, 2005. Appellee Larry Norris, Director of the ADC, filed a response and motion to dismiss after the petition was filed, and again after the amended petition was filed. Appellant filed a response to the second motion to dismiss. Taking these pleadings into consideration, the circuit court denied the petition, finding that appellant had not stated facts or advanced evidence to support his claim, dismissing under Ark. R. Civ. P. 12(b)(6) with prejudice and holding the dismissal a strike for purposes of Ark. Code Ann. § 16-68-607 (Repl. 2005). Appellant now brings this appeal of that order.
In his petition, appellant asserted that the ADC had failed to follow its own regulations, specifically an administrative directive that he attached to his petition concerning meritorious furloughs. He contended that the ADC has not purchased electronic monitoring devices as required by the administrative directive so that inmates who qualify for meritorious furlough and who are serving life sentences may go on furlough as provided by the directive. Appellant claimed that he qualified for furlough under the directive, but, because he is serving a life sentence, he has been denied furlough. He asserts that he was denied equal protection and an adequate and meaningful review of his petition for meritorious furlough.
Appellant requested relief through a declaratory judgment holding that the ADC is required by the directive to purchase the electronic monitoring devices and provide inmates with life sentences who qualify an opportunity for meritorious furlough. Appellant further requested a holding that appellant has a liberty interest in the meritorious furlough program, that appellee has failed to adopt adequate rules in compliance with the Administrative Procedure Act, and that appellee is required to provide a meaningful and adequate process to petition for meritorious furlough and appellate review. Appellant additionally requested that the court issue a writ of mandamus that would order appellee to enforce those holdings requested by appellant, compelling compliance with the holdings by adoption and implementation of compliant regulations and by provision of adequate and meaningful review of appellant’s petition for meritorious furlough. Appellant further requested the writ to compel appellee to make electronic monitoring devices available, and to suspend all meritorious furloughs until the devices are available.
Appellee contends that declaratory judgment is not proper because the directive does not require the purchase of the equipment, that it merely creates special conditions for inmates serving life sentences, and that the requested relief would not terminate the controversy. Appellee claims that the trial court did not err in dismissing the request for a writ of mandamus because decisions for meritorious furlough are within the discretion of the ADC, that appellant has no right to meritorious furlough and declaratory judgment, as otherwise argued, is not appropriate.
In reviewing a court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id. A trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000).
Treating the facts alleged in the petition as true, we therefore determine first whether appellant stated facts sufficient to support a cause of action for declaratory judgment. This court has said that declaratory relief lies where four requisite conditions are met, as follows: (1) there is a justiciable controversy; (2) it exists between parties with adverse interests; (3) those seeking relief have a legal interest in the controversy; (4) the issues involved are ripe for decision. Jegley v. Picado, 349 Ark 600, 80 S.W.3d 332 (2002). On appeal, the question as to whether there was a complete absence of a justiciable issue shall be reviewed de novo on the record of the trial court. Id. at 611, 80 S.W.3d at 336.
The basis for appellant’s claim is that the ADC has failed to follow a requirement to purchase electronic monitoring devices under its directive. Appellee contends that no such requirement is articulated in the directive, that any grant of meritorious furlough is completely within the ADC’s discretion, and appellant’s claim therefore fails. Appellee apparently is, in essence, arguing that there is no justiciable controversy. Appellee further argues that the requested relief would not terminate the controversy.
Appellant contends that but for the lack of monitoring equipment, he has otherwise qualified for meritorious furlough, and although he does not request that the court provide a declaration to the effect that he is qualified, he requests that the court establish whether the ADC is required to purchase the equipment so that his qualifications may be evaluated in accordance with what appellant asserts is the proper interpretation of the directive. His argument, however, presupposes a faulty assumption — that he and other inmates serving life sentences qualify under the directive.
We agree with appellee that the requested relief would not settle the controversy in this case because the directive is clearly subject to the ADC’s discretion and simply does not require the purchase of the equipment. The policy announced at the beginning of the directive states, “It shall be the policy of the Department of Correction to grant meritorious furloughs pursuant to established requirements and conditions for approved inmates.” The directive then goes on to list the procedures for implementing that grant, with specific conditions for those inmates serving life sentences that require the use of electronic monitoring devices. Appellant construes this language as mandatory, but he ignores other language in the directive that plainly leaves the decision as to whether any particular inmate qualifies for furlough open to the ADC’s discretion. Nor does the directive articulate a specific requirement to purchase the devices or any other equipment.
In support of his argument, appellant points out that the quoted language in the directive uses the term “shall.” But that language does not restrict the ADC’s discretion to choose not to make meritorious furlough available to any inmate for any reason, and the term “shall” is followed by the limitation of the grant to “approved” inmates. Furloughs are to be granted on the conditions and following the procedures in the directive, but only so long as the ADC approves the inmate for the grant of a furlough. The form used for processing a furlough application provides for a broad range of factors to be considered in determining whether an inmate qualifies for furlough and allows for any additional factors previously not contemplated to be added under the designation of “other” positive or negative factors. Listed negative factors include a “long remaining sentence.”
Appellant provided responses to his inquiries from ADC officials indicating that the ADC was not considering or processing requests for meritorious furloughs for inmates serving life sentences. Appellee points out that under the ADC’s interpretation of the directive, the policy only established conditions and requirements for approved inmates. Thus, the ADC could not be required to purchase equipment to implement those conditions for a class of inmates who were not approved for meritorious furlough, as was the case for inmates serving life sentences. The ADC’s grant of any meritorious furlough, as it must be, is highly discretionary. Although appellant contends that he meets all the criteria in the directive and, therefore would qualify for meritorious furlough if the electronic monitoring devises were available, in actuality he does not qualify because the ADC has determined that inmates serving life sentences are not approved for meritorious furlough. Even if appellant were to secure the requested declaration that the directive mandates the purchase of electronic monitoring devices, appellant’s stated controversy would not be resolved. Because the ADC is not required to approve any inmate or class of inmates for meritorious furlough, such a declaration would be tantamount to an advisory opinion.
Like statutes, we presume the validity and constitutionality of an administrative agency’s rules and regulations and the words contained in them are given their plain and ordinary meaning unless there is an ambiguity. Johnson v. Arkansas Board of Examiners in Psychology, 305 Ark. 451, 808 S.W.2d 766 (1991). An administrative agency’s interpretation of its own regulation will not be overturned unless it is clearly wrong. Arkansas Professional Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). We have recognized that administrative agencies, due to their specialization, experience, and greater flexibility of procedure, are better equipped than courts to analyze legal issues dealing with their agencies. Clinton v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991). In particular, the administration of prisons has generally been held to be beyond the province of the courts. Id.
We cannot say that the ADC was clearly wrong in interpreting its directive to allow discretionary approval of inmates for meritorious furlough, in addition to the conditions and procedures outlined in the directive. The language of the directive preserves within the ADC’s discretion the right to determine what inmates or class of inmates may be approved for meritorious furlough. The use of the word “shall” in this instance does not circumvent that discretion and that discretion overrides any requirements appellant may infer from the directive.
Although it is true that the policy results in inmates serving life sentences receiving treatment distinct from other inmates, appellant has not shown a violation of equal rights. Equal protection does not require that persons be dealt with identically, only that the classifications rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classifications are made, and that their treatment be not so disparate as to be arbitrary. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003); McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). Infringement of constitutional rights is an exception to our general reticence to entertain prisoner’s administrative complaints. Clinton v. Bonds, 306 Ark. at 557, 816 S.W.2d at 171-72. Here, there is a real distinction as to those serving a life sentence, as they have received the harshest punishment, other than a death sentence, contemplated by our system. That fact justifies the distinction and provides relevance, as well. Therefore, appellant did not plead facts so as to support a constitutional infringement necessary to fall within the exception to our general rule that we do not substitute our judgment for that of the prison administration.
Because the ADC has not approved, and is not required to approve, inmates serving life sentences for meritorious furlough, appellant has not shown that he could have any potential liberty interest in furlough, or that the rules and procedures in regard to furloughs may be deficient, or that he has not received an adequate and meaningful review of his petition. Appellant’s remaining arguments for declaratory judgment therefore fail.
Finally, because appellant failed to plead facts necessary to state a cause of action for declaratory judgment, he also failed to state a case supporting the issuance of a writ of mandamus. The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Manila School Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004). Here, appellant based his request for the writ upon the establishment of a right under the declaratory judgment he requested. In the absence of a basis for declaratory judgment, we also affirm the circuit court’s denial of appellant’s petition for a writ of mandamus.
Affirmed. | [
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Jim Gunter, Justice.
Petitioners, Erin, Inc. and Robert S. Harris, Jr. (jointly “Petitioners”), petition this court for a writ of prohibition in response to an order entered by the respondent, White County Circuit Court, denying Petitioners’ motion to transfer the case to the Arkansas Workers’ Compensation Commission. Petitioners filed their petition for writ of prohibition on the basis that the circuit court lacked jurisdiction over the claims brought against Petitioners by Tim Johnson, an employee, and that such claims are subject to the exclusive jurisdiction of the Commission under Ark. Code Ann. § ll-9-105(a) (Repl. 2002). We grant the petition for writ of prohibition.
In December 1983, Harris formed Erin, Inc., a for-profit company engaged in the business of owning construction equipment. Since Erin’s formation, Harris has served as its president, registered agent, chief job-site manager of operations, and sole shareholder. On April 29, 1996, Harris also formed Arkansas Steel Erectors, Inc. (ASE), which assumed many of Erin’s administrative and job-management responsibilities, although Erin retained ownership of a truck crane used in various construction jobs. Harris served as ASE’s president, registered agent, and chief job-site manager. He also served as ASE’s sole shareholder until 2003 and has remained a majority shareholder since that time. Both Erin and ASE had workers’ compensation insurance from July 20, 2002, to July 20, 2003.
In late 2002, Tim Johnson applied for a job with ASE and was employed by ASE to work at a job site at the White County Medical Center in Searcy. On March 27, 2003, Johnson sustained injuries as a result of an accident at the medical center. During a construction project on which Johnson worked, a pendant line on a crane boom snapped, causing the boom to fall and strike his head. According to his claim for compensation, he sustained multiple fractures to his skull, ribs, pelvis, legs, and feet. On April 9, 2003, Johnson filed a claim against ASE with the Workers’ Compensation Commission, alleging that he suffered workplace injuries on March 27, 2003. The insurance company, Commerce & Industry, paid Johnson a cumulative sum totaling $384,446.33.
On August 8, 2003, Johnson filed a lawsuit, Tim Johnson v. Nabholz Construction Corp., Case No. CV-20030489, in White County Circuit Court. On February 27, 2006, Johnson filed a first-amended complaint, alleging that Erin was liable in tort. Johnson filed a second-amended complaint on March 24, 2006, alleging that both Erin and Harris were liable in tort for his injuries. In his complaint, Johnson alleged that Petitioners negligently caused his injuries; Johnson did not allege that his employer, ASE, was liable for his injuries. Petitioners filed an answer on April 26, 2006. Commerce & Industry filed a complaint in intervention on May 16, 2006. Petitioners filed a third-party complaint on May 8, 2006, alleging reformation of the contract, breach of contract by Lafayette Insurance Company, and negligence by Ed Strohm, an insurance agent who worked with Harris on the policies for ASE and Erin.
On June 26, 2006, Petitioners filed a motion to transfer the issue of jurisdiction over Johnson’s claims to the Commission. In their motion, Petitioners argued that the applicability of workers’ compensation law was a jurisdictional issue that only the Commission could resolve. They requested that the circuit court transfer consideration of the issue of the jurisdiction over Johnson’s claims to the Commission. A hearing on the matter was held before the circuit court on July 31, 2005. The jurisdictional question was argued before the circuit court, and the court took the issue under advisement. On August 7, 2006, the circuit court entered two separate orders for Erin and Harris denying the motion to transfer.
On September 19, 2006, Petitioners filed a petition for writ of prohibition with this court on the grounds that the circuit court was wholly without jurisdiction to deny their motion to transfer Johnson’s claims to the Commission. In our per curiam opinion, Erin, Inc. v. Circuit Court of White County, 368 Ark. 595, 247 S.W.3d 849 (2007), we denied Petitioners’ petition without prejudice and ordered rebriefing because petitioners failed to include an abstract and pertinent pleadings in the addendum, as required by Ark. Sup. Ct. R. 4-2(a)(5) (2006) and Ark. Sup. Ct. R. 4-2(a)(8) (2006), respectively. Petitioners submitted a substituted brief, and we now consider their petition for writ of prohibition.
For their sole allegation of error, Petitioners argue that only the Commission can determine its jurisdiction over Johnson’s claims. Specifically, Petitioners contend that, under VanWagoner v. Beverly Enterprises, 334 Ark. 12, 970 S.W.2d 810 (1998), the Commission has exclusive, original jurisdiction over each petitioner to determine the fact issues establishing its jurisdiction. Petitioners assert that the VanWagoner holding put an end to the concurrent-jurisdiction approach by which a plaintiff previously could file in circuit court, which, at that time, decidedjurisdiction. Respondent argues that there are no issues of fact concerning jurisdiction to be determined by the Commission, and asserts that the remaining issue — whether an injured employee may sue third-party defendants — is an issue of law to be decided in circuit court.
Before we address the merits of the petition, we note our standard of review. It is well settled that a writ of prohibition is an extraordinary writ that is only appropriate when the lower court is wholly without jurisdiction. Ulmer v. Circuit Court of Polk County, 366 Ark. 212, 234 S.W.3d 290 (2006). Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. The writ is appropriate only when no other remedy, such as an appeal, is available. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. We confine our review to the pleadings in the case. Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Writs of prohibition are prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance. They should issue only in cases of extreme necessity. Id.
The rights and remedies granted to employees under the Arkansas Workers’ Compensation law, found at Ark. Code Ann. § 11-9-101 through Ark. Code Ann. § 11-9-1001 (Repl. 2002 & Supp. 2005), are within the exclusive jurisdiction of the Commission. Arkansas Code Annotated § ll-9-105(a) (Repl. 2002) provides that “[t]he rights and remedies granted to an employee subject to the provisions of [the Workers’ Compensation Chapter], on account of injury or death, shall be exclusive of all other rights and remedies of the employee.” Section ll-9-105(a) further provides in pertinent part:
No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.
Further, an injured employee may, in addition to pursuing a claim for workers’ compensation benefits, maintain an action in court against a third party who may be responsible for such injury. See Ark. Code Ann. § ll-9-410(a) (Repl. 2002). We have held that a third party under section 11-9-410 is some person or entity other than the first and second parties involved, and the first and second parties can only mean the injured employee and the employer or one liable under the compensation act. Wilson v. Rebsamen Ins., 330 Ark. 687, 957 S.W.2d 678 (1997).
Both parties cite VanWagoner, supra, in their briefs as dispositive of this case. Petitioners argue that VanWagoner stands for the proposition that the Commission has exclusive jurisdiction to determine jurisdiction over Harris and Erin. Respondent argues that its case comports with our holding in VanWagoner, as there are no issues of fact to be determined by the Commission, but the only issue remaining is an issue of law. In VanWagoner, we held that the Commission has exclusive, original jurisdiction to determine the fact issues establishing its jurisdiction. 334 Ark. at 13, 970 S.W.2d at 811. There, the appellant filed suit against her employer in circuit court. On motion of her employer, the circuit court dismissed with prejudice the tort action on the ground that it was barred by the exclusive-remedy provision of the Workers’ Compensation Act. We certified the case from the court of appeals and held:
We believe that the better rule is to recognize the administrative law rule of primary jurisdiction and to allow the Workers’ Compensation Commission to decide whether an employee’s injuries are covered by the Workers’ Compensation Act.
We hold that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort. See Angle v. Alexander, 328 Ark. 714, 719, 945 S.W.2d 933 (1997) (citing Miller v. Ensco, Inc., 286 Ark. 458, 461, 692 S.W.2d 615 (1985) (explaining that, before an employee is free to bring a tort action for damages against an employer, the facts must show that the employer had a “desire” to bring about the consequences of the acts, or that the acts were premeditated with the specific intent to injure the employee). In so holding, we overrule all prior decisions to the extent that they are inconsistent with this opinion.
Id. at 15-16, 970 S.W.2d at 812. In adopting this rule, we pointed out that the Commission has vast expertise in this area, and that the goals of uniformity, speed, and simplicity would best be achieved by granting the Commission the exclusive, original jurisdiction to determine the applicability of the Act. Johnson v. Union Pac. R.R., 352 Ark. 534, 541-42, 104 S.W.3d 745, 747-49 (2003).
We reiterated our holding in VanWagoner in WENCO Franchise Management, Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000) (per curiam). There, the appellee injured her back when she slipped and fell at the Wendy’s restaurant where she worked. Her injury was accepted as compensable, and she received benefits. When she later sought additional benefits, her employer responded by arguing that she was not performing employment services at the time of her accident. A hearing was scheduled before the Workers’ Compensation Commission, but was later cancelled by the appellee. Thereafter, the appellee filed a negligence suit against her employer in circuit court. The employer filed a motion for summary judgment on the ground that the appellee’s exclusive remedy was under the Act and that only the Commission had the authority to determine jurisdiction in the matter. The circuit court denied summary judgment, and the employer petitioned for a writ of prohibition. Based upon the holding in VanWagoner, we granted the writ of prohibition and held:
[T]here is no dispute that Chamness was employed by WENCO at the time of the injury or that the injury occurred on WENCO’s premises. Nor is it disputed that Chamness has already received workers’ compensation benefits for her injury. Furthermore, it is not alleged by Chamness that her injury resulted from an intentional tort by WENCO. Accordingly, the Commission has exclusive authority to determine the facts that establish jurisdiction in this matter.
WENCO, 341 Ark. at 88, 13 S.W.3d at 904.
Further, we cite with approval the case of Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 965 S.W.2d 805 (1998). In Zenith, Michael Coats, an employee of VNE, Inc., was injured on a plane piloted by Jerry Gardner, who owned both VNE and Sierra Hotel Corporation. The plane, which was owned by Sierra, crashed, and Coats sustained injuries. Zenith Insurance, the workers’ compensation insurance carrier, filed an action against VNE, Gardner, and Sierra, and on appeal, Coats argued that Gardner and Sierra were third parties within the meaning of Ark. Code Ann. § ll-9-410(b) and that Gardner negligently operated the plane. Relying upon section ll-9-410(b), as well as our holding in Wilson, supra, the court of appeals held: (1) Zenith Insurance, as a subrogee of Coats, was prohibited by Ark. Code Ann. § ll-9-105(a) from suing VNE, Coats’s employer; (2) Gardner was not a third party because he was the sole owner and officer, or persona, of VNE and was protected by the exclusive-remedy provisions of Ark. Code Ann. § ll-9-105(a); and (3) Sierra was not a third party because the complaint alleged no negligence on Sierra’s part, and if it had, Sierra was a persona of Gardner under Ark. Code Ann. § 11 — 9— 105(a), and pursuant to that statutory provision, jurisdiction was properly placed before the Commission. Zenith, 61 Ark. App. at 171-72, 965 S.W.2d at 808; see also Coats v. Gardner, 333 Ark. 581, 970 S.W.2d 802 (1998) (holding that the election-of-remedies doctrine barred claims against an employer after the injured employee received a settlement from the workers’ compensation carrier for the employee’s injuries).
In the present case, Johnson, ASE’s employee, filed a third-party negligence action against Petitioners in circuit court. Under the rationale in Zenith, supra, Harris is in a position similar to Gardner’s position because he was the sole owner, president, and majority shareholder of Erin and ASE. Additionally, Erin’s position is similar to Sierra’s position in Zenith, supra, because Harris owned and operated Erin, which owned the crane at the time of Johnson’s accident. Thus, the question of whether Harris and Erin are third parties under Ark. Code Ann. § ll-9-410(a) or a “persona” under Ark. Code Ann. § ll-9-105(a) is a question for the Commission.
For these reasons, we hold that the circuit court exceeded its jurisdiction in denying Petitioner’s motion to transfer Johnson’s claims to the Commission. Based upon our holdings in VanWagoner, WENCO, and Zenith, supra, we conclude that the Commission had exclusive, original jurisdiction to determine the facts that establish jurisdiction. The Commission’s decision on jurisdiction may be tested and reviewed on appeal. Further, we have stated that, when the encroachment on workers’ compensation jurisdiction is clear, a writ of prohibition is warranted. Travelers Ins. Co. v. Smith, 329 Ark. 336, 340, 947 S.W.2d 382, 384 (1997). When this encroachment occurs, we have granted a writ of prohibition. WENCO, supra. Because jurisdiction of this case properly lies with the Commission, we grant Petitioners’ writ of prohibition.
Petition for writ of prohibition granted.
Petitioners named the Honorable Bill Mills, the presiding judge of White County Circuit Court, as a respondent to their petition, but prohibition lies to the circuit court. Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004). Accordingly, we treat the petition as one against the lower court. Id. Johnson filed a brief for the respondent.
Petitioners’ case was submitted to our court on March 1,2007. On March 6,2007, six days after the submission date, Johnson filed a supplemental brief on behalf of White County. Because we did not order White County to file a supplemental brief in this matter, we will not consider the supplemental brief on appeal. See Erin, Inc. v. White County, 368 Ark. 595, 247 S.W.3d 849 (2007). | [
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Jim Gunter, Justice.
This appeal arises from a Sebastian County Circuit Court order dismissing the illegal-exaction and unlawful-transfer claims made by appellants, Bill Maddox, Bill Grace, Jerry Frisby, Melba Riggs, and Charles Beasley, on behalf of themselves and citizens, taxpayers, and utility ratepayers, against appellee, the City of Fort Smith (“City”). The circuit court dismissed appellants’ complaint, finding that the transfers of funds challenged by the unlawful-transfer claims were lawful and did not violate Ark. Code Ann. § 14-234-214 (Repl. 1998). We affirm.
A recitation of the facts is found in our opinion, Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001), from the previous appeal. In April of 1994, the Fort Smith Board of Directors approved a resolution endorsing the passage of a one-percent sales-and-use tax for the City’s share of a county wide sales tax to be used for a specific list, including waste water improvements and sanitation. On April 16, 1996, the City’s Board of Directors, pursuant to Ordinance No. 15-96, authorized a two-million-dohar transfer from both the water-and-sewer operating fund and the sanitation fund, which are both maintained by the City, to be transferred to the general fund to build a new police facility.
On August 31, 2000, appellants filed an illegal-exaction lawsuit under Article 16, §§11 and 13, of the Arkansas Constitution, claiming, inter alia, that the transfers transformed the user fees collected in the City’s water-and-sewer fund and sanitation fund into illegal taxes. The circuit court entered summary judgment in favor of the city. On appeal in Maddox, supra, we affirmed the circuit court’s grant of summary judgment on the illegal-exaction claim, holding that the resolution was not the law imposing a tax and that no funds were used for any purpose other than that authorized in the Sebastian County levying ordinance. We further affirmed the circuit court’s grant of summary judgment on one unlawful-transfer claim, concluding it was barred by the statute of limitations. However, we reversed and remanded the circuit court’s grant of summary judgment as to the appellants’ unlawful-transfer claims arising out of the 1996 transfers of funds. Id. In Maddox, we stated:
[Tjhe record reflects the following evidence regarding whether the transferred funds were unencumbered, or surplus. An affidavit by Kara Bushkuhl, Finance Director of the City of Fort Smith, states that the $500,000 appropriation authorized in 1994 “was charged to surplus waterworks revenues of the Water and Sewer Operating Fund as defined and authorized by Ark. Code Ann. § 14-234-214(e)(3)(D).” Ms. Bushkuhl also states in the affidavit that the 1996 appropriations of $2,000,000 from the water and sewer operating fund and $2,000,000 from the sanitation operating fund were of “unencumbered surplus funds.” However, Ms. Bushkuhl does not indicate that she used any statutory provision to determine whether a surplus existed in 1996. The statutory provision cited in her affidavit in connection with the 1994 appropriation, section 14-234-214(e)(3)(D), only indicates that a surplus can be used for other municipal purposes; whereas, the definition of “surplus funds” is set forth in Ark. Code Ann. § 14-234-214(e)(l): those funds “in excess of the operating authority’s estimated cost of maintaining and operating the plant during the remainder of the fiscal year then-current and the cost of maintaining and operating the plant during the fiscal year next ensuing.” This statutory definition of “surplus funds” is not referenced anywhere in Ms. Bushkuhl’s affidavit. Furthermore, the water and sewer operating fund reported a deficiency of $1,078,459 in fiscal year 1996 and $1,491,915 in fiscal year 1997. The sanitation operating fund also reported deficiencies of $617,188 in fiscal year 1996 and $359,306 in fiscal year 1997. Based upon this record, we conclude that a question of fact remains regarding whether “surplus funds,” as defined in Ark. Code Ann. § 14-234-214(e)(l), existed in the City’s utility and sanitation accounts prior to the 1996 transfers. We therefore reverse the trial court’s grant of summary judgment on this point.
Maddox, 346 Ark. at 220, 56 S.W.3d at 382-83.
The case was remanded and tried on November 21, 2005. On December 12, 2005, the circuit court made the following rulings. First, the circuit court found that the funds generated by the county sales tax and deposited into the water-sewer fund and the sanitation fund never became surplus funds, as defined by Ark. Code Ann. § 14-234-214(e), and concluded that the reallocated funds were sales-tax revenues that could be used for any general municipal purpose. Second, the circuit court ruled that even if the sales-tax revenue were to be considered in the computation of surplus as defined by Ark. Code Ann. § 14-234-214(e), there was a surplus sufficient to make the distribution. Third, the circuit court found that the transfer of the funds from the sanitation fund was not governed by Ark. Code Ann. § 14-234-214. Appellants timely filed their notice of appeal on January 9, 2006. From the December 12, 2005, order, appellants now bring their appeal.
For their first point on appeal, appellants argue the circuit court erroneously ruled that “surplus” was ambiguous under Ark. Code Ann. § 14-234-214. Specifically, appellants contend that the statute itself explains what surplus is. Appellants also assert that the circuit court improperly resolved the ambiguity in a manner that excluded certain revenue of the water-sewer fund from the calculation of surplus.
In response, the City argues that the circuit court correctly found that the transfer did not violate Ark. Code Ann. § 14-234-214(e)(1), claiming that the statute “does not apply to extraordinary funds that are deposited into the account by the governing body and not part of the rate structure.” Specifically, the City makes three arguments. First, as a threshold matter, the City contends the circuit court properly found that the 1996 challenged reallocations were Sebastian County sales-tax revenues that we determined were subject to allocation for any municipal purpose. Maddox, supra. Second, the City maintains that our well established law-of-the-case doctrine prohibits this court from considering any issues decided in Maddox, supra. Third, the City argues that the circuit court’s construction of Ark. Code Ann. § 14-234-214(e) was proper and should be upheld.
At the outset, we note that we previously held in Maddox, supra, that the Sebastian County ordinance generated the county sales-tax revenue that the City dispersed into the water-sewer and sanitation funds. We further acknowledged that the funds from the City’s share of the county sales tax were approved by the voters for general municipal purposes. Maddox, 346 Ark. at 218, 56 S.W.3d at 381. Because we remanded the case for a determination of the issues now on appeal, we decline to address the City’s law-of-the-case argument.
This appeal presents an issue of statutory interpretation. We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276 (2004). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. State v. Britt, 368 Ark. 273, 244 S.W.3d 665 (2006). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. When a statute is clear, however, it is given its plain meaning, and we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. We are very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Arkansas Code Annotated § 14-234-214, the statute at issue, provides:
(a) Rates for resident and nonresident consumers of a municipal waterworks system shall be fixed by the legislative body of the municipality.
(b) The rates to be charged by the municipality must be adequate to:
(1) Pay the principal of and interest on all revenue bonds and revenue promissory notes as they severally mature;
(2) Make such payments into a revenue bond sinking fund as may be required by ordinance or trust indenture;
(3) Provide an adequate depreciation fund and to provide the operating authority’s estimated cost of operating and maintaining the waterworks system.
(c) Rates fixed prior to the issuance of revenue bonds or notes may be reduced if authorized by the trust indenture or ordinance pertaining to the issuance. The rates shall not be reduced below the standards prescribed in this subchapter.
(d) If a municipality subject to the provisions of this subchapter proposes to make additions to its system, which additions are to be financed by the issuance of revenue bonds or revenue promissory notes, within eighteen (18) months of the effective date of the rate, then the legislative body of the municipality shall fix a rate to be effective immediately, which will be sufficient, in addition to the above requirements, to amortize the revenue bonds or revenue promissory notes with interest as they severally mature.
(e)(1) If any surplus is accumulated in the operation and maintenance fund of the waterworks system which shall be in excess of the operating authority’s estimated cost of maintaining and operating the plant during the remainder of the fiscal year then-current and the cost of maintaining and operating the plant during the fiscal year next ensuing, the excess may be by the operating authority transferred to either the depreciation account or to the bond and interest redemption account, as the operating authority may designate.
(2) If any surplus is accumulated in the depreciation account over and above that which the operating authority shall find may be necessary for probable replacements needed during the then fiscal year, and the next ensuing fiscal year, the excess may be transferred to the bond and interest redemption account.
(3) If a surplus shall exist in the bond and interest redemption account, it may be applied by the operating authority, in its discretion, subject to any limitations in the ordinance authorizing the issuance of the bonds, or in the trust indenture:
(A) To the payment of bonds that may later be issued for additional betterments and improvements;
(B) To the purchase or retirement, insofar as possible, of outstanding unmatured bonds payable from the bond and interest redemption account, at no more than the fair market value thereof;
(C) To the payment of any outstanding unmatured bonds payable from the bond and interest redemption account that may be subject to call for redemption before maturity; or
(D) To any other municipal purpose.
With our rules of statutory construction in mind, we turn to the present case to determine whether Ark. Code Ann. § 14-234-214(e) is applicable. The circuit court ruled that the statute was inapplicable because it was silent on the issue of whether nonoperating funds, or county sales-tax receipts, are considered surplus. Further, the circuit court found that the funds generated by the sales-tax and deposited into the water-sewer account never became surplus funds under Ark. Code Ann. § 14-234-214(e).
We agree with the circuit court’s ruling on this issue. Here, section 14-234-214 is inapplicable to the case sub judice. Section 14-234-214 in its entirety deals with rates for “resident and nonresident consumers of a municipal waterworks system.” The statute requires that the municipality set rates sufficient to meet the utility’s operating and maintenance costs. Ark. Code Ann. § 14-234-214(a), (b). In the event that the utility’s operating-and-maintenance costs are lower than anticipated, thereby resulting in a surplus of rate-derived funds, the statute sets out a hierarchy for the use of the surplus. If the municipality determines that the anticipated costs for the current and next fiscal years will result in a surplus of rate-derived funds, then the operating authority may transfer the excess to either a depreciation account or to a bond-and-interest redemption account. Ark. Code Ann. § 14-234-214(e)(l). Next, if a surplus exists in a bond-and-interest redemption account, the operating authority may apply the surplus to any of four enumerated purposes, including “any other municipal purpose.” Ark. Code Ann. § 14-234-214(e)(3). The statute requires the municipality to charge rates sufficient to pay for the operation and maintenance of the waterworks system. When the utility operates efficiently or the maintenance costs are lower than expected, the operating authority may determine, under the guidelines set forth in section 14-234-214(e)(l), that there is a surplus of rate-derived funds; that is, there is a surplus of funds derived from rates assessed for the specific purpose of operating and maintaining the waterworks system. In sum, section 14-234-214(e) reflects the legislature’s determination that certain fiscal requirements must be satisfied before funds obtained for a specific purpose may be transferred and applied to “any other municipal purpose.” The entire statutory scheme rests on the fact that the funds are rate-derived for the specific purpose of operating and maintaining a municipal waterworks system.
Because the entire statute is based on rate-derived funds, the term, “surplus funds,” as used in subsection (e), refers to the disposition of rate-derived surplus funds. Here, the revenue transferred into the water-sewer account was not rate-derived surplus; rather, it was the City’s portion of county sales-tax revenue that was authorized by a Sebastian County ordinance to be used for any municipal purpose. Maddox, 346 Ark. at 213, 56 S.W.3d at 377-78. Therefore, based upon our rules of statutory construction, we conclude that the statute is inapplicable to the present case involving the reallocation of any extraordinary non-operating funds into the City’s water-sewer account. Accordingly, we hold that the circuit court correctly determined that the sales-tax funds deposited into the water-sewer account “did not ever become funds that were ‘surplus’ funds as defined by Ark. Code Ann. § 14-234-214(e).”
In view of our holding that the statute is inapplicable, we need not address appellant’s arguments that section 14-234-214 applies to the sanitation fund. Moreover, appellant fails to cite any statute that prohibits transfers from the sanitation operating fund to the general fund or that establishes the sanitation operating fund as a separate, enterprise fund. Pursuant to Ark. Code Ann. § 14-232-103 (Repl. 1998) and Ark. Code Ann. § 8-6-211 (Supp. 2005), municipalities are authorized to operate solid-waste management systems. In that regard, municipalities are authorized, but not required, to impose reasonable rates for sanitation services. Ark. Code Ann. § 14-232-110 (Repl. 1998). Arkansas Code Annotated § 8-6-211(c) (Supp. 2005) authorizes municipalities to use funds “appropriated from any available funds for the . . . operation of a solid waste management system.” Id. (Emphasis added.)
Here, the record reflects that generally accepted accounting principles in 1996 permitted the City’s sanitation operating fund to be operated as part of its general fund. Thus, any transfer of surplus funds from the sanitation account would merely have been a transfer within the general fund. Accordingly, we affirm the circuit court’s dismissal of appellant’s claim challenging the legality of the 1996 transfer of funds from the City’s sanitation operating fund to the City’s general fund.
Affirmed.
Danielson, J., dissents. | [
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Hill, C. J.
This is the second appearance of this case in this court. The case is first reported in 73 Ark. 315 (Darden v. State), where a conviction for murder in the second degree was reversed and judgment modified to sustain a conviction for manslaughter only, and the cause remanded to the circuit court for the circuit judge to fix the punishment for manslaughter and impose the sentence therefor. The appellant filed a motion for a rehearing, in which he set forth, among other matters, that it was an infringement of his constitutional rights to be sentenced for manslaughter without another trial upon the indictment, claiming that 'his rights under both the State and Federal constitutions weré violated by the action of the court. That motion was overruled, and the original judgment directed to be carried into execution.
From this judgment a writ of error was prosecuted to the Supreme Court of the United States. The State moved in that court to dismiss the writ on the ground that the judgment of this court was not final, and said motion was sustained, and the writ dismissed. Darden v. Arkansas, 200 U. S. 615.
After the dismissal of said writ of error, the Prairie Circuit Court, in obedience to the mandate of this court, again assumed jurisdiction of the case.
The appellant there renewed the grounds of objection to the proceeding which he had presented upon the motion for a rehearing in this court. Pie alleged that he was not guilty of manslaughter, or any other crime, and demanded a trial by jury, and especially demanded that a jury be impaneled to determine the amount of punishment for the crime of manslaughter if the court held that he must be sentenced for that offence. He interposed in his behalf various sections of the Constitution of Arkansas, which he alleged were being violated by the proceedings against him, and also alleged that a sentence upon him without a jury having been first impaneled, sworn and charged to assess his punishment would be depriving him of his liberty without due process of law, in violation of the laws and Constitution of Arkansas and of the United States, and he demanded a new trial before a jury of his peers, and alleged that a sentence without such trial would be a violation of the Constitution of Arkansas and of the United States.
All these pleas were overruled, and the circuit court fixed his punishment at four years in the penitentiary, and sentenced him accordingly. The appellant then prayed an appeal to this court, which the circuit court refused to grant him.
The statutes provide that upon any conviction, other than for a capital offense, the circuit court may grant the defendant an appeal to the Supreme Court. In the event that the circuit court refuses to grant the appeal, then the appellant may lodge his transcript in the Supreme Court and apply to one of its judges for an appeal. The judge shall, after an examination of the transcript, allow the appeal unless he is satisfied that there are no reasonable grounds to believe that any errors prejudicial to the defendant have been committed, and that thé appeal is prayed for delay only, in which event he shall refuse the appeal and so indorse, it upon the transcript. See Kirby’s Digest, § § 2588,' 2596, 2600.
The appellant pursued the statute in this case, and laid the transcript before one of the judges of this court, who, after examining the same, granted the appeal. The State now moves to dismiss that appeal.
The question whether an appeal should lie was addressed, in the first instance, to the circuit judge, and in the second instance to the judge of this court to whom the application was made; after either of those judges grants the appeal, then the appeal is a fact accomplished; it is a closed incident, and is not subject to dismissal in cases where an appeal lies; and this is an appeal-able judgment.
Various cases are cited which arose under different practice acts, but none has been found which will deny the right to hear an appeal after it has been granted by one authorized by law to grant it and the order appealed from is an appealable one. It is true that the appeal in this case presents a very narrow subject of review; but, be it broad or narrow, it is here for decision. The sole question is whether the circuit judge obeyed the mandate of this court. All other questions were precluded by the former decision.
The question now is, not whether the appeal should have been granted — for that has been done — but whether the judgment should be affirmed or reversed.
The court complied with the mandate properly, and there were no questions raised below which were not raised and considered on the former hearing of this case. The action of this court in reversing the conviction for'murder in the second degree and directing a sentence for manslaughter — in other words, modifying the conviction so as to make it manslaughter, instead of murder in the second degree, and delegating the duty of fixing the punishment and imposing the sentence to the circuit judge, instead of exercising it here, is not a violation of any rights guarantied to the appellant by the Constitution or statutes of Arkansas. As pointed out in one of the former opinions in this case,- the practice in this regard was established in an opinion delivered by Chief Justice Cockrirr in Simpson v. State, 56 Ark. 19, and has been followed in many cases since.
The proceeding is not in violation of any of the provisions of the Federal Constitution or the amendments thereto. The case of Maxwell v. Dow, 176 U. S. 581, has put at rest any possible question in this regard. That case reviews many previous decisions of that tribunal, holding that the constitutional privileges of presentment'by a grand jury and trial by jury are not rights guarantied by the Constitution or any of its amendments to pro.ceedings in State Courts; that such privileges are not ones which the Federal Constitution, or any of its amendments, prevent a State from taking away from its citizens or citizens of other States within its borders. It is expressly held that the Fourteenth Amendment does not prohibit a State from abolishing trial by jury, as understood at common law.
Hence it follows that the asserted deprivation of rights secured by the Federal Constitution and the Fourteenth Amendment thereto are groundless because the Federal ¡Constitution and Fourteenth Amendment do not guaranty a jury trial in any form to a person charged with crime as one of the rights the States are required to give. Therefore, if the contention was true that the rule in the Simpson case which is applied here denied a right of trial by jury, there would be no violation of the Federal Constitution 'or the Fourteenth Amendment thereto or any other amendment, but only a violation of the State Constitution, and this court has often held that such is not the case.
Judgment affirmed. | [
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McCulloch, J.
The appellant, A. J. Davis, was tried and convicted under an indictment charging him with having failed and omitted to pay over to his successor in office, as county treasurer, certain public funds.
The indictment is 'as follows: “The grand jury of Polk County’ in the name and by authority of the State of Arkansas, accuse A. J. Davis of the crime of wilfully failing and omitting to pay over public funds and moneys in his hands as county treasurer to W. B. Jones, his successor in office, committed as follows, towit: The said A. J. Davis, in the county and State aforesaid, on the 10th day of September, 1902, when upon the 31st day of October, 1900, after having been duly elected, was qualified and acting county treasurer of Polk County, and having taken an oath of office as such treasurer, and being then and there, by virtue of his said office, a receiver of public funds and moneys due school district No. eight (No. 8), of said county, and then and there, by virtue of his said office'as such treasurer, and having the custody and possession of a large sum of money and public funds, towit: two hundred and seven dollars and seventy-eight cents ($207.78) of gold, silver and paper money of the United States,’ and of the value thereof, the personal prop erty of the said school district No. eight (No. 8), of Polk County; and thereafter, towit: on the 17th day of September, 1902, his term of office as such treasurer having expired by reason of his resignation of said office of county treasurer, as aforesaid, W. B. Jones was appointed and qualified as his successor to said office upon the 20th day of September, 1902, he, the said A. J. Davis, with the felonious intent to cheat the said school district No. eight (No. 8) and the citizens thereof, unlawfully, feloniously and fraudulently, did then and there wilfully fail and omit to pay over to his said successor in office, at the expiration of his term of office, the said moneys and public funds aforesaid, against the peace and dignity of the State of Arkansas.”
The defendant demurred to the indictment, and the demurrer was overruled by the court.
Does the indictment charge the commission of a public offense ?.
The statute under which the charge is preferred is as follows : “It shall be unlawful for any officer of this State, or of any county, township; city, or incorporated town in this State, or any deputy, clerk or other person employed by any such officer, having the custody or possession of any public funds, by virtue of his office of employment, to use any of such funds in any manner whatsoever for his own purpose or benefit, or to loan any of such funds to any person or corporation whomsoever or whatsoever, or to permit any person or corporation whomsoever or whatsoever to use any of such funds, or to pay or deliver any such funds to any person or corporation, knowing that he is not entitled to receive it, or for any such officer to wilfully fail or omit to pay over any such funds to his successor in office at the expiration of his term of office.” Kirby’s Digest, § 1990.
The first objection to the indictment urged by counsel for appellant is that it contains no allegations bringing the defendant within that part of -the statute which provides that it shall be unlawful for any such officer to' “use any of such funds in any manner whatsoever for his own use or benefit, or to loan any of such funds to any person or corporation whomsoever or whatsoever, or to permit any person or corporation whomsoever or whatsoever to use any such funds or to pay or deliver any such funds to any person or corporation, knowing that he is not en titled to receive them.” It is contended that the statute does not make it an offense for a public officer mérely to wilfully fail to pay over funds in his hands to his successor unless he shall have misappropriated the funds or allowed them to be misap- “ propriated.
This court in State v. Hunnicutt, 34 Ark. 562, construing a statute similar to this except that it used the words “and for any such officer” instead of “or for any such officer,” held that an indictment which accused the defendant of having failed to pay ever public money in his hands, without alleging that he converted or misapplied the same, did not charge an offense under the statute.
In State v. Govan, 48 Ark. 76, the court held that an allegation of misappropriation of public funds by an officer, without alleging that he failed to pay over on settlement, did not state an offense.
The statute upon which the indictment in this case is founded was enacted in' 1891, after the decision in the Govan and Hunnicutt cases, and worked a substantial change in.the law. It was the manifest intention of the lawmakers to make it an offense for any officer having the custody of public funds by virtue of his office “to wilfully fail or omit to pay over any such funds to his successor in office at the expiration of his term of office.” It is not material whether he had previously misapplied the funds or permitted them to be misapplied. His wilful failure to pay over the funds to his successor is of itself a wrongful misappropriation of public funds in his hands.
The indictment must, however, allege either a misappropriation of the funds or a wilful failure on the part of the accused to pay over to his successor funds in his hands at the expiration of his term of office. It is not sufficient to allege merely that he failed to pay over funds which had previously come to his hands, as this alone does not constitute an offense. Now, the indictment against appellant charges neither that he misappropriated the public funds which came into his possession nor that he had the funds on hand at the expiration of his term of office. It alleges that on September 10, 1902, he had in his custody certain funds belonging to a school district of the county, and that thereafter on the 17th day of September, 1902, his term expired, and that he did feloniously, etc., fail to pay over the funds to his successor at the expiration of his term. From an allegation that he had the funds in his hands on September io, 1902, we can not presume that he still had them on hand a week later when his term expired. He might have lawfully paid out the funds in-the meantime, or he might have lost them in a way that would leave him civilly responsible for the same, but not criminally liable under this statute.
Nothing can be presumed as to the material facts necessary to constitute an offense. Every material fact necessary to constitute an offense must be stated with reasonable distinctness and precision in the indictment. State v. Eldridge, 12 Ark. 608; Barton v. State, 29 Ark. 68; State v. Graham, 38 Ark. 519; State v. Ellis, 43 Ark. 93; Elsey v. State, 47 Ark. 575.
The demurrer to the indictment should have been sustained.
Reversed and remanded with directions to sustain the demurrer. | [
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Battle, J.
On the 21st, day of August, 1906, the grand jury of Ashley County indicted Lum Duckworth for murder in the first degree, committed on the 6th day of January, 1906, by killing Thomas Howie. He moved for a change of venue, alleging that the minds of the inhabitants of Ashley County were so prejudiced against him that he could not obtain a fair and impartial trial. His application was supported by his affidavit and by the affidavits of Milton Owen and Decatur Williams. On the motion of the prosecuting attorney these persons were sworn and examined touching their knowledge as to the minds of the inhabitants of Ashley County being prejudicéd against the defendant. The application was denied. He was tried and convicted of murder in the first degree; and he appealed.
He insists that he should have a new trial because the court overruled his application for a change of venue.
The statutes provide: “Any criminal cause pending in any circuit court may be removed by the order of such court, or by the judge thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial can not be had therein. Such order of removal shall be made on the application of the defendant by petition setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the attorney for the State, and the truth of the allegations in such petition be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county, and not related to the defendants in any way.” Kirby’s Digest, § § 23x7, 2318.
In Jackson v. State, 54 Ark. 243, and Price v. State, 71 Ark. 180, it was held that such persons may be^ sworn and orally examined in open court as to the nature and sources of their information upon which they based their affidavits, in order to ascer tain their credibility. That was done in this case. The examination developed the fact that they had been only in a few places in the county along the railroad, and did not know the persons from whom they heard expressions of opinion, or where they resided, and that their information was not sufficient to form an opinion as to the state of the minds of the inhabitants as to the defendant; that they swore recklessly, and were not credible.
The court instructed the jury in part, as follows: “All. murder which shall be perpetrated by means. of poison or by lying in wait, or by any other kind of willful, deliberate, malicioxis and premeditated killing shall be deemed murder in the first degree.” Apd instructed them over the objections of the defendant as follows:
“You are instructed that, although you may believe from the evidence that sometime prior to the killing the deceased assaulted the defendant, and knocked him down with a rifle, and punched him with a rifle, and kicked him, yet, if you further believe that after said assault the deceased and the defendant walked together for some distance, and sufficient tipie had elapsed for defendant’s passion to subside, and that, while they were so walking together, the deceased passed the defendant, and the defendant deliberately drew a pistol and shot deceased and killed him with malice aforethought and with the intent in his mind at the time to take the life of the deceased, while deceased was riding from him and making no demonstrations, this would be murder in the first degree, and you should so find.”
The defendant’s objection to this instruction is that it is not a correct statement of what is necessary to constitute murder in the first degree. To convict the defendant of murder in the first degree under it, it was necessary for the jury to find that a sufficient length of time had elapsed for his passion to subside— cooling time — and that thereafter he deliberately drew a pistol and shot deceased and killed him — deliberation-Mvith malice aforethought, and with the intent in his mind at the time, at the time of the deliberate shooting, to take the life of the deceased — premeditation—in other words, must find deliberation, malice aforethought, and premeditation. In this connection the court instructed the jury, at the instance of the defendant as follows:
“No. 7. You are instructed that manslaughter is the unlawful killing of a human being without malice, either express or implied; that manslaughter must be voluntary upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible; and if you believe from the evidence in this case that the deceased assaulted him with a rifle, or punched him with a rifle, or kicked and cursed him in such a manner as would be apparently sufficient to arouse in the defendant such passion, and that it did arouse such passion in him, and that while in this condition, and before a sufficient length of time had elapsed for his passion to cool, he shot and killed the deceased unlawfully and without justification, he is not, guilty either of murder in the first or second degree, but is guilty of voluntary manslaughter only, and by your verdict you should so find.”
Construed in connection with the other instructions, the instruction objected to is substantially correct.
The evidence was sufficient to sustain the verdict.
Judgment affirmed. | [
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Tom Glaze, Justice.
llene Gladson, now deceased, had two accounts with Dean Witter Reynolds that she held as joint tenant with right of survivorship with her husband and daughter, Vickie. Sometime after the accounts were opened, Mrs. Gladson’s husband died, but the accounts otherwise remained unchanged. However, Mrs. Gladson did subsequently execute a will nominating Vickie as executrix of her estate and bequeathing, among other things, $5,000 from each of the two accounts to her son, John Gladson, Jr.
After Mrs. Gladson died, Vickie petitioned to admit her mother’s will to probate. Because she claimed ownership to the two Dean Witter accounts as the surviving joint tenant, Vickie did not list those accounts in the inventory of Mrs. Gladson’s estate. John disagreed with his sister’s claim and requested that Vickie account for the funds in the accounts that their mother bequeathed him. The two parties submitted their dispute to the probate judge on stipulations and briefs, and the judge responded, holding in Vickie’s favor. We affirm the trial judge’s decision.
In his first argument, John cites Hall v. Superior Federal Bank, 303 Ark. 125, 794 S.W.2d 611 (1990), and argues his mother’s mere opening of the Dean Witter accounts was not conclusive of her intent to establish them as joint tenancies with right of survivorship. Instead, he contends the trial courts should have considered Mrs. Gladson’s will as controlling of her intent which reflected that the accounts should be included in her estate so her bequests to John could be fulfilled.
John’s argument ignores the manner in which the parties submitted this case to the court below. Both parties stipulated that the two Dean Witter accounts created joint tenancies with right of survivorship in Mrs. Gladson, her husband and Vickie. In other words, they agreed Mrs. Gladson had opened the accounts with the intent to create joint accounts with the right of survivorship. The only issue submitted to the trial court was whether Mrs. Gladson’s will and bequest to her son can be said to have terminated the previously established accounts to which Vickie lays claim as the surviving tenant. The trial judge said no, and that being the only issue properly presented in this appeal, we agree.
Our court apparently has not addressed this issue. However, in Miller v. Riegler, 243 Ark. 251, 419 S.W.2d 599 (1967), we considered with approval the Arizona Supreme Court’s discussion of the history of joint tenancy and that part of the discussion relevant here reads as follows:
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 case 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 cotentants 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.
Consistent with the foregoing, the rule appears well settled that a devise by a joint tenant, who is survived by other joint tenants, is not effective to pass any title to the real estate in joint tenancy for the reason that the title passes by operation of law to the survivor or survivors. See In re Estate of Alpert, 95 Ill. 2d 377, 447 N.E.2d 796 (1983); First United Presbyterian Church v. Christenson, 33 Ill. App. 3d 928, 339 N.E.2d 15 (1975); see also 4A R. Powell, Real Property § 619.1 (1982); 20 Am. Jur. 2d Cotenancy and Joint Ownership § 3 (1965). Such a rule applies in full measure to personal property. See Miller, 243 Ark. 251, 419 S.W.2d 599. In sum, title to property held in joint tenancy takes precedence over the claim of a devisee, legatee or heir, as the case may be. In re Estate of Alpert, 95 Ill. 2d at 381, 447 N.E.2d at 798.
As previously noted, Vickie was the sole surviving tenant of the survivorship accounts she held with her mother and father. As a consequence, Vickie acquired ownership to those funds by operation of law upon her mother’s death. That ownership could not be terminated by Mrs. Gladson’s will and bequests of funds contained in those accounts to John. Therefore, we affirm the trial court’s holding that Vickie owns both accounts free and clear of any claim John has asserted by virtue of their mother’s will and specific bequests. | [
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Robert H. Dudley, Justice.
The City Council of Sherwood adopted an ordinance that called for a special election to decide whether an unincorporated area should be annexed into the City. Subsequently, a majority of the voters approved the annexation. Appellants filed suit challenging the validity of the election. Their primary argument was that the ordinance’s legal description of the land to be annexed and the plat attached to the ordinance failed to “contain an accurate description of the lands to be annexed” as required by Ark. Code Ann. § 14-40-303(a)(l) (1987). The trial court refused “to apply a hypertechnical concept of ‘accuracy’ in determining whether a legal description comports with the requirements of Ark. Code Ann. § 14-40-303(a)(1) (1987),” and upheld the annexation. On appeal the appellants’ primary arguments are that the ordinance’s legal description of the area to be annexed is inaccurate and that the plat attached to the ordinance reflects boundaries that are different from those contained in the ordinance’s legal description.
Petition for Rehearing; denied.
Gregory Ferguson, for appellant.
Unfortunately, we cannot consider appellants’ argument since their abstract does not provide us with either the legal description contained in the ordinance or a copy of the plat. We will not go to the transcript for those items. For over a hundred years we have repeatedly pointed out that there is only one transcript and there are seven judges. It is impractical for all members of the court to examine the one transcript, and we will not do so. Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986). Accordingly, we are unable to reach the merits of two of the points of appeal and affirm those points under Rule 9(d) of the Rules of the Supreme Court and Court of Appeals.
We do, however, reach one point of appeal. In it, the appellants contend that under the case of Carter v. City of Sherwood, 263 Ark. 616, 566 S.W.2d 746 (1978), the schedule of proposed services for the annexed area is inadequate. There is no merit in the argument. In Carter, there was no list or schedule of proposed services. No information was provided to the voters. They would have to make their own investigation to find what services might be provided. Here, there was a schedule or list of the services to be provided.
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant, Bobby Joe Fruit, was convicted on December 11, 1981, in Crittenden County Circuit Court of aggravated robbery and second degree assault. He is presently serving a sentence of twenty-five years in the Arkansas Department of Correction. On August 22, 1989, appellant filed a petition for writ of mandamus and declaratory judgment in Jefferson County Circuit Court. In this petition he attacked his classification as a fourth offender for purposes of parole eligibility. He alleged appropriate officials at the Arkansas Department of Correction, when classifying him under Ark. Code Ann. § 16-93-603 (1987), improperly considered two prior Oklahoma incarcerations. Following an evidentiary hearing on the matter, the court denied appellant’s requested relief. Appellant brings this pro se appeal from that ruling.
Appellant’s abstract consists only of a “Statement” he submitted as an exhibit at the evidentiary hearing; it is flagrantly deficient. Pro se litigants are held to the abstracting requirement of Rule 9(e) of the Rules of the Supreme Court. Pennington v. Lockhart, 297 Ark. 475, 763 S.W.2d 78 (1989). When an abstract is flagrantly deficient the judgment must be affirmed for failure to comply with Rule 9(e). Harrison v. State, 300 Ark. 439, 779 S.W.2d 536 (1989); Grisso v. State, 297 Ark. 546, 763 S.W.2d 661 (1989).
Affirmed.
Brown, J., dissents. | [
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Steele Hays, Justice.
Arwood Hicks has appealed from an order of the trial court refusing to award an attorney’s fee pursuant to Ark. Code Ann. § 23-79-209(a)(1987). Hicks contends he was entitled to an attorney’s fee for defending a declaratory judgment action filed against him by Allstate Insurance Company, appellee. We sustain his contention and, accordingly, reverse and remand.
The only question we must decide is whether the declaratory judgment suit ended in a judgment against Allstate within the language of § 23-79-209(a). That provision of the code reads:
(a) In all suits in which the judgment or decree of a court is against a life, fire, health, accident, or liability insurance company, either in a suit by it to cancel or lapse a policy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of the policy of any of his rights thereunder, or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the policy to require the company to reinstate the policy, the company shall also be liable to pay the holder of the policy all reasonable attorneys’ fees for the defense or prosecution of the suit, as the case may be [Our emphasis.]
The pertinent facts are these: Hicks had a collision with another motorist, Tony Parrish, who then sued Hicks in Crittenden Circuit Court. Hicks was driving a car belonging to Ms. Vesta Cathy, his aunt, which was insured by Allstate. The policy was issue while Ms. Cathy was alive, but after her death in April 1987, Hicks continued to make premium payments which Allstate accepted without knowledge of Ms. Cathy’s death. The collision with Parrish occurred some ten months after Ms. Cathy’s death.
Allstate undertook a defense of Hicks under a reservation of rights and in April 1989 Allstate filed a declaratory judgment action in White Circuit Court alleging that Hicks was not covered under the policy issued to Ms. Cathy. Hicks denied the material allegations of the complaint and asserted affirmative defenses of estoppel, fraud, waiver, bad faith and breach of fiduciary relationship. Hicks requested attorneys’ fees pursuant to Ark. Code Ann. § 23-79-209 (1987). In November 1989, Allstate settled the litigation with Parrish and on December 7 the declaratory judgment action was dismissed with prejudice. Hicks promptly moved anew for an award of attorney’s fees and has appealed from the trial court’s subsequent denial.
Noting the clarity of the statutory language, Allstate concedes that the legislature intended to permit the award of attorney’s fees and costs to a prevailing party even where no monetary recovery results, as in a declaratory judgment action. Allstate maintains, however, that there has been no adjudication on the merits and, since no one “prevailed” in this action, no fee is warranted. We disagree, finding our authority in the settled case law of this court relating to the dismissal of actions under the rubric “with prejudice.” The case of Harris v. Moye’s Estate, 211 Ark. 765, 202 S.W.2d 360 (1947), illustrates the rule: Harris’s complaint against Moye was dismissed for failure to prosecute. The order of dismissal concluded, “It is therefore by the court considered, ordered and decreed that this cause be, and it is hereby, dismissed with prejudice, for want of prosecution.” Harris’s subsequent complaint on the same cause of action was dismissed upon a plea of res judicata. Harris appealed and this court affirmed, citing an opinion written by Judge Butler, Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S.W.2d 327 (1929):
This term [with prejudice] has a well recognized legal import; it is the converse of the term without prejudice; and is as conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff.
And in Russell v. Nekoosa Papers, Inc., 261 Ark. 79, 547 S.W.2d 409 (1977), we said:
There is ample precedent that whenever an action is dismissed with prejudice it is as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff after a trial.
Other decisions to the same effect are Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980); Curry v. Hanna, 228 Ark. 280, 307 S.W.2d 77 (1957); Seaboard Finance Company, et al. v. Wright, Admx., 223 Ark. 351, 266 S.W.2d 70 (1954).
Whether we interpret the statute broadly or narrowly matters little, as it is clear under our cases that the dismissal of this action with prejudice constituted a final adjudication on the merits and brought the matter within the plain language of the statute. The appellant was entitled to an attorney’s fee as therein provided.
Reversed and remanded to the trial court to determine and award the appropriate amount for legal services rendered at that level. A fee of $1,250 is awarded for services on appeal.
Glaze, J., not participating. | [
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Per Curiam.
The petitioner was convicted on May 30,1990, of theft of property and sentenced to five years in the Arkansas Department of Correction. He conducted his trial pro se and filed a timely notice of appeal pro se on June 29, 1990, albeit to the wrong court. His notice is directed to the Circuit Court of Marion County. He designated the entire record for appeal.
Upon filing his notice of appeal, the petitioner asked the court to appoint counsel for the appeal and to declare him indigent. The court did appoint counsel but effectively denied his request for indigency status by ordering the petitioner to pay for the transcript of his appeal. Thereafter, the petitioner’s counsel filed a motion for a new trial on July 9,1990, and a hearing was set for August 24,1990, which hearing the petitioner failed to attend. According to his counsel, this failure was due to an arrest in Florida.
On August 22, 1990, counsel filed a motion to extend the time for filing the transcript, and the trial court granted the extension until November 23, 1990. However, on October 1, 1990, which was prior to the transcript deadline, counsel moved to withdraw as attorney for the petitioner based on the unavailability of the petitioner and the petitioner’s request that he withdraw. That original motion to withdraw apparently was never submitted to this court for action, and counsel is still attorney of record for the petitioner. Petitioner’s counsel did file a second motion to withdraw on January 22,1991, and that motion is pending before this court.
The petitioner failed to file his transcript on November 23, 1990, or, more precisely, the circuit clerk of Marion County failed to file it with this court, because she had not been paid by him. However, the petitioner’s transcript has now been tendered to this court, and the petitioner’s counsel filed a Motion for Rule on the Clerk on January 5,1991, and further asked this court to find the petitioner to be indigent. Counsel states in the motion that the petitioner is now incarcerated in the Arkansas Depart ment of Correction and has failed to respond to counsel on whether he wishes to continue his appeal or not. Apparently the petitioner does want to continue his appeal because he subsequently paid the cost of the transcript and the transcript was tendered to the clerk of this court on January 7, 1991.
We deny the motion. Though, admittedly, the communication between the petitioner and his counsel was strained, there is no doubt that the petitioner was under circuit court order denying his indigency status and requiring that he file the transcript. Counsel wanted to withdraw his representation, and the petitioner concurred. But until leave to withdraw was granted, counsel had an obligation to either 1) assure the transcript was filed on time or 2) obtain another extension of time to file the transcript. Neither of these actions apparently was taken.
Another avenue open to counsel was to have the appropriate court act on his motion to withdraw. Pursuant to Ark. Sup. Ct. R. 11(h):
Any motion by counsel for a defendant in a criminal case for permission to withdraw made after notice of appeal has been given shall be addressed to this Court [Arkansas Supreme Court] and is to contain a statement of the reason for the request, and shall be served upon the defendant appealing. . . .
Under this rule, the petitioner’s counsel should have addressed his original request for withdrawal to this court, not the circuit court.
This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See Shuffield v. State, 292 Ark. 185, 729 S.W.2d 11 (1987). Here, the attorney falls short of admitting error or neglect, but rather suggests that if this court finds counsel negligent, the Rule on the Clerk should be granted. We have held that a statement that it was someone else’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the petitioner’s motion must fail.
If the petitioner’s attorney files a motion and affidavit in this case accepting full responsibility for not filing the transcript on time, then the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
MARCH 18, 1991
Appellant, pro se.
Winston Bryant, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
Petitioner’s request for indigency status is denied for failure to comply with Ark. Sup. Ct. R. 28.
Counsel’s motion to withdraw which was filed in the court of appeals on January 22, 1991, is denied at this time, subject to further review by this court should negligence of counsel be admitted.
Justices Holt, Glaze, and Corbin would grant the Motion for Rule on the Clerk.
SUPPLEMENTAL OPINION ON DENIAL OF RECONSIDERATION
Per Curiam. The respondent/appellee Attorney General files a motion to reconsider denial of a motion for rule on the clerk. The Attorney General is concerned that petitioner/appellant Kelly Huggins will still be able to prosecute a direct appeal, if his attorney is to blame for failure to lodge the transcript in timely fashion. If the fault, however, lies with Huggins, according to the Attorney General, then Huggins will not be permitted a direct appeal which is what the Attorney General favors.
We said in our original per curiam opinion, where we denied Huggins’ motion for a rule on the clerk, that Huggins’ actions evidenced a desire to appeal: “Apparently the petitioner does want to continue his appeal because he subsequently paid the cost of the transcript and the transcript was tendered to the clerk of this court on January 7, 1991.” The Attorney General disputes this factual conclusion and attaches an affidavit to its motion that the Marion County Circuit Clerk had not been paid the cost of the transcript in the amount of $60.00.
In reviewing the court reporter’s transcript, we find that there is a typed notation with a dollar amount which the court reporter completed: “$269.10 cost paid by appellant.” This certificate was completed by the court reporter on October 10, 1990. The clerk’s affidavit relates to the clerk’s cost which is distinguishable from the cost of transcribing the record itself. Again, paying for the cost of transcribing the record evidences the fact that Huggins wanted to appeal.
We remain of the opinion that counsel for Huggins should have either extended time for filing the transcript one more time, or filed the transcript in timely fashion, or obtained leave from this court to withdraw as Huggins’ counsel prior to the time that the transcript was due. It appears from the information before us that none of these avenues was pursued by counsel.
The motion to reconsider is, therefore, denied. | [
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Per Curiam.
Paul E. Hopper petitions for certiorari seeking to have this court review the record of the disposition of a complaint he filed with the respondent, Arkansas Judicial Disci pline and Disability Commission. We deny the petition.
Rule 12F of the commission’s rules provides that we may grant certiorari to bring before this court any action or failure to act on the part of the commission.
The petition states facts which were alleged before the commission and contends that the commission erred in finding a lack of probable cause to proceed with formal charges and a formal hearing. The petition also states that the petitioner has evidence that the judge who was the respondent before the commission and who testified as a witness lied to the commission.
Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy. Sexton v. Supreme Court Comm. on Prof. Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). While it is true that the petitioner has no right of appeal from the commission’s decision, the petition makes no allegation of an error on the face of the record.
Evidence that the responding judge lied in his testimony before the commission constitutes no basis for certiorari. The commission would be the proper forum in which to present that evidence.
Petition denied.
Hays and Glaze, JJ., dissent. | [
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Robert H. Dudley, Justice.
This is a significant case involving the collection of accrued but unpaid child support. The 1978 divorce decree awarded custody of the children to the mother, appellant, and ordered the father, appellee, to pay monthly child support in an amount equal to 32% of his take-home pay, but, in any event, not less than $200.00 per month. In 1982, the mother filed a petition asking that the father be held in contempt for failing to pay child support. Prior to the hearing, the father paid the mother $ 1,000.00, and they agreed that the future amount of child support would be a fixed $200.00 per month, increasing to $225.00 per month beginning in 1984, and further increasing to $250.00 per month beginning in 1987. Neither party petitioned to have the original decree modified. The mother’s petition was later dismissed for failure to prosecute.
On July 12, 1989, the mother filed a petition to collect 32% of the father’s income as past due child support. In October 1989, she voluntarily dismissed her petition, but re-filed it on December 7, 1989.
After hearing the evidence the trial court found that the applicable statute of limitation was five years, and the mother “is not entitled to the amount previously ordered by this court but shall be entitled to the amount agreed by the parties.” The mother appeals and argues that the trial court erred (1) in applying a five year statute of limitation and (2) in refusing to give judgment for the full amount of past due child support. The trial court did err in fixing the amount of arrearage and, accordingly, we reverse.
The chancellor applied the correct statute of limitation. Prior to 1989, the statute of limitation applicable to arrearages accruing as the result of failure to comply with an order of child support was five years. Ark. Code Ann. § 16-56-115 (1987); Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957). In 1989, the period of limitation was changed to ten years. Ark. Code Ann. § 9-14-236 (Supp. 1989) and 16-56-129 (Supp. 1989). This case was heard after the effective date of the 1989 statute. The mother argues that the chancellor erred in refusing to apply the 1989 statute retroactively. The argument is without merit. When a new statute of limitation does not specifically repeal a prior statute of limitation, the new statute is not intended to operate retroactively and result in the removal of a limitation on causes of action already barred. Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978). The old statute of limitation controls for all causes of action already accrued on the date of the enactment of the new statute. Trapnall v. Burton, 24 Ark. 371 (1866). The new statute of limitation applicable to this case does not provide for repeal of the old statute. Thus, the old five-year statute of limitation is applicable to those support payments due prior to the effective date of the new act, and the new ten-year statute of limitation is applicable to payments accruing after the effective date of the new act.
The mother filed her suit for collection of arrearages on July 12,1989. She voluntarily dismissed the suit in October 1989, but re-filed it on December 7,1989, which was within one year of the nonsuit. Thus, the chancellor correctly ruled that the mother’s recovery was limited to July 12, 1984.
Next, the mother assigns as error the chancellor’s ruling that she “is not entitled to the amount previously ordered by this court but shall be entitled to the amount agreed by the parties.” Again, a relatively new statute is applicable and requires that we divide this point into two sub-parts: (1) decide the amount of arrearages due before the statute’s effective date, and (2) then decide the arrearages due after its effective date.
The chancellor made a finding of fact that the parties agreed to reduce the child support to a fixed $200.00 beginning in 1982, $225.00 per month beginning in 1984, and $250.00 beginning in 1987. That finding is not clearly erroneous, and we affirm it. Prior to 1987, agreements between former spouses reducing the amount of child support payments did not bind the court, but the court could recognize such an agreement (1) if the agreement was supported by a valid consideration, Ray, v. Manatt, 250 Ark. 230, 465 S.W.2d 111 (1971), or (2) if it were inequitable to do otherwise, Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). An example of consideration is where the amount of child support is reduced by agreement and the obligor then takes custody of one of the children. Ray v. Manatt, supra. Here, there was a comparable consideration. The mother gave up the right to 32 % of the father’s income but gained an increase in the fixed amount of support from $200.000 to $250.00 per month over a period of time. This was significant since the father had been unemployed some of the time just prior to the agreement. Accordingly, the chancellor did not err in recognizing the agreement.
However, the chancellor did err in refusing to be bound after the effective date of the new act. Ark. Code Ann. § 9-12-314(b) and (c) (Supp. 1989), effective July 20, 1987, provides:
(b) Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court shall be final judgment as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.
(c) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion. However, the court may offset against future support to be paid those amounts accruing during time periods, other than reasonable visitation in which the noncustodial parent had physical custody of the child with the knowledge and consent of the custodial parent.
The General Assembly re-adopted identical provisions in 1989. Ark. Code Ann. § 9-14-234(a) and (b) (Supp. 1989).
These statutes were enacted to insure that child support programs of the State of Arkansas would qualify for future funding from the United States Department of Health and Human Services. In Title IV-D of the Social Security Act, Congress appropriated funds for such a program. 42 U.S.C. § 666 (1988) prescribes procedures which states must follow to qualify for funding. In 1986, as part of the Budget Reconciliation Act, Congress amended the qualifying procedures by adding a requirement that each state must have procedures which require that any payment or installment of support under any child support order is:
(a) (9) (A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced,
(B) entitled as a judgment to full faith and credit in such State and in any other State, and
(C) not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.
42-U.S.C. § 666(a)(9)(A)-(C) (1988).
In April of 1989, the Office of Child Support Enforcement of the Department of Health and Human Services issued its final rule with provisions identical to those set out above. See 45 C.F.R. § 303.106 (1989). This final rule discusses the intent of the federal requirement. It states that child support has been difficult to collect in the past and that to help improve collections it would be better to place an obligation on the party owing the support to diligently petition the court for a reduction rather than to reduce the amount of support retroactively at a later time. Congress was concerned with states which had accorded child support orders a lesser stature than other money judgments and have allowed child support awards to be modified retroactively. In these states the court had the authority to reduce or nullify arrearages by reducing the amounts owed for past periods. 54 Fed. Reg. 15,758 (April 19, 1989). The discussion of the final rule also states that support judgments may be compromised or satisfied by specific agreement of the parties on the same grounds as exist for any other judgment in the state. 54 Fed. Reg. 165,763 (April 19, 1989). The final rule was adopted April 14, 1989. Thus, the passage of the amendment to the Social Security Act and the adoption of the final rule roughly correspond in time to the enactment of the two Arkansas Code sections, Ark. Code Ann. § 9-12-314 and § 9-14-234 (Supp. 1989).
As previously set out, the original decree in this case was never modified by the court. Only a court can modify its decree and, as a result, the original decree remains in effect. After the new statute was enacted, the trial court could not “set aside, alter, or modify” the “order which has accrued unpaid support.” Thus, the chancellor erred in ruling he could recognize the parties’ private agreement for the payments which fell due after the effective date of the act.
This is an áppeal from a chancery case. We hear equity appeals de novo on the record made below, and ordinarily dispose of such cases on that record. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). However, if the record is not sufficient for us to dispose of the case, we have the discretionary power to remand an equity case for further proceedings. Ferguson v. Green, supra. The record in this case does not reveal what 32% of the father’s income amounted to for the period after the 1987 act became effective. Thus, we do not have a sufficient record to finally dispose of the case. Accordingly, we remand the case for determination of the full amount of child support due.
Affirmed in part, reversed in part, and remanded.
Hays and Glaze, JJ., dissent.
Price, J., concurs. | [
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Tom Glaze, Justice.
This is the second appeal in this probate case. The executor of William Sherman Adams’s estate brought the first appeal from the trial court’s decision finding the deceased’s two grandchildren, Tina and Melissa, pretermitted heirs and upholding the constitutionality of Ark. Code Ann. § 28-39-307(b) (1987), the pretermitted heir statute. We upheld the statute’s validity. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).
Following Holland, the probate court added Tracy Slote as a pretermitted heir to its earlier order. Tina and Melissa, having complied with ARCP Rule 54(b), now bring this interlocutory appeal, contending the “law of the case” of the Holland decision precluded the trial judge from adding Slote and giving her a distributive share of the estate. We affirm.
Arkansas follows the general rule that an argument which could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case. Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). We also have said that the law of the case doctrine prevents consideration of an argument that could have been made at the first trial. Id.; see also Widmer v. Widmer, 292 Ark. 384, 729 S.W.2d 422 (1987). Here, a hearing was held on the issue of pretermitted heirs on February 26,1987, prior to the first appeal. Therefore, Tina and Melissa argue that Tracy could have challenged at trial and on appeal the trial judge’s decision naming only Tina and Melissa as pretermitted heirs. They further argue that, while Tracy had been listed as an heir and given notice of all probate proceedings, Tracy failed to appear at the February 26 hearing to show that she was a grandchild of the deceased.
Tina and Melissa filed a petition for their statutory shares as pretermitted heirs on June 10, 1986. On February 26, 1987, a hearing was held on the petition and on the issue raised by the estate regarding the constitutionality of the pretermitted heir statute. Although Tina and Melissa claim Tracy received notice of all the hearings below, we have thoroughly searched the record and nowhere find she had notice of the February 26 hearing or its purpose. At the closing of all the testimony in that hearing, the estate’s attorney informed the trial judge that Tracy had also been named as a granddaughter and surviving heir, but he was uncertain as.to her legal status. He told the judge that Tracy had been served with the estate’s original petition, but she had not filed a claim prior to the February 26 hearing. Upon conclusion of the hearing, the trial judge made no actual finding as to Tracy but did determine and order that Tina and Melissa each were entitled as pretermitted heirs to a one-quarter share of the estate.
Upon our review of the record, we are unable to say Tracy knew that her status as a grandchild was in dispute, nor that she had been notified that a hearing was scheduled to determine either her rights or Tina’s and Melissa’s as pretermitted heirs. That being true, it is impossible to conclude that Tracy could have questioned either at trial or on appeal the trial judge’s earlier order which omitted any reference to Tracy and named only Tina and Melissa as pretermitted heirs. As a consequence, we hold that the law of the case is inapplicable here.
In its order awarding Tracy a one-sixth distributive share in the estate, the trial court found no one had presented any proof that negated Tracy’s position and relationship to the decedent or that showed she had abandoned her claim as an heir. Under these circumstances, we agree with the trial court that to deny her claim would be patently unjust. Therefore, we affirm.
At the hearing following Holland, Tracy was shown to be the adopted daughter of. Bill Adams, the deceased’s son. Thus, Tracy was shown to be one of the deceased’s grandchildren, and no question is raised in this appeal concerning that relationship. | [
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Lyle Browít, Justice.
Mr. and Mrs. Tommy Lewis, appellees, own a 320-acre tract of land which abuts the industrial park of Conway, Arkansas, on two sides. Seventy-nine acres of that tract were condemned by appel- lee, Arkansas State Highway Commission, for the construction of Interstate Highway No. 40. 1-40 runs approximately north and south through the entire acreage. The landowners were awarded a substantial verdict but the amount is not here questioned. The Commission seeks a reversal because of five alleged procedural errors. Those points will be numbered, italicized, and discussed in sequence.
1. The trial court erred in refusing to strike the testimony of appellees’ expert witness, C. V. Barnes, relating to damages to 95 acres of appellees’ land east of Interstate 40. Appellees’ land prior to the taking consisted of an integral tract. The taking resulted in a division of the single tract into three parcels. In the northwest corner, adjacent to the Conway Industrial Park, is 6.6 acres left isolated from the balance. To the southwest, and adjoining the park area, is a tract of approximately 143 acres. On the east side of Interstate 40 is a tract consisting of 95 acres. Barnes testified that the latter tract was “severed” by the highway; that its division had destroyed that tract’s value for industrial use; railroad and other utility service would no longer be available for that tract; that its highest and best use was reduced to agricultural purposes. The change in the “use” classification, according to Barnes, resulted in a considerable reduction in market value of the 95-acre tract.
The highway department objected to the testimony on the ground that Barnes was testifying to an element of “special damages” and those damages had not been pleaded. Insofar as damages are concerned, an answer is not required in eminent domain proceedings unless the landowner expects to claim special damages. Railway v. Hunt, 51 Ark. 330, 11 S. W. 418 (1888).
When the integrity of an individual tract as a unit is diminished by partial taking it is fundamental that the diminution is a proper element for consideration in ascertaining just compensation. It is commonly referred to as “severance damages.” United States v. 26.81 Acres of Land, 244 F. Supp. 831 (1965). The partial taking of an integral unit would logically put a con-demnor on notice that an injury to the whole may well be contemplated. Railway v. Hunt, supra. It is a guide commonly used by appraisers in determining “before and after values.” Young v. Arkansas State Highway Comm’n., 242 Ark. 812, 415 S. W. 2d 575 (1967).
We conclude that where the condemnation involves the partial taking of an integral unit of land the diminution in value of the residual is not to be classified as “special damages.”
The Highway Commission cites one authority to support its theory. That is Bradley v. Keith, 229 Ark. 326, 315 S. W. 2d 13 (1958). Both Bradley and Keith claimed title to the same tract of condemned property. At a preliminary hearing, with all parties present, the value of the land was stipulated. The money was placed in the court registry to be held subject to a determination of ownership. The cause was placed on the regular docket. Only Bradley filed a pleading. Keith did not appear for a hearing of the matter on its merits. The court ruled that Keith was entitled to reimbursement for the cost of his tax deed and Bradley was awarded the balance. Keith later persuaded the court to set aside the judgment for unavoidable casualty. This court held that in an eminent domain proceeding in which two parties are contesting for the title to the condemned property, it is necessary that both parties set forth their contentions in the form of a timely answer. An excerpt from American Jurisprudence was cited merely to show that there are some exceptions to the general rule that a landowner is not required to file an answer in a condemnation proceeding.
II. The trial court erred in refusing to grant appellant a continuance of one week on the basis of surprise. Appellant moved for a continuance of one week on the ground that it was surprised by the “special dam ages” testimony of C. V. Barnes. We know of no reason why appellants should' not have logically anticipated Barnes’ testimony and have prepared itself to rebut it. Moreover, the trial court did stop the- trial and recess from Monday until the following Wednesday. When the trial resumed, appellant produced three appraisers. Part of the testimony of each of those appraisers was in refutation of Barnes’ evidence of diminution in value of the 95-acre tract.
III.It mas error to allow the landowners to amend their answer after the trial began a/nd in refusing appellant’s motion for a continuance to respond to appellees’ amended pleadings. These salient facts are fatal to appellant’s contentions:
1. The amended answer is not abstracted; appellant’s brief does not even give a transcript page-reference to the amendment; it is not indexed in the transcript.
2. Appellant’s motion for a continuance is not abstracted; if any proof was offered in support of the motion it is buried in a transcript consisting of 674 pages; it is not listed in the transcript index.
This court has on innumerable occasions cited the importance of compliance with Rule 9 (d) pertaining to the necessity of abstracting the record. As the work of the court continues to rise in volume, the need for abstracting the one record (transcript) that is filed here increases in significance. Point III will not be considered.
IV. The trial court erred in overruling appellant’s motion for a mistrial. No such motion is abstracted. An argument consisting of one sentence appears in appellant’s brief. The argument makes no transcript reference.
V. On motion of appellant, the trial court should have disqualified himself and quashed the jury panel. Again, no snch motion is abstracted. Six pages of appellant’s brief are devoted to argument on.the point. Neither the abstract nor the argument contains a single reference to any testimony in support of the point. The contention must meet the same fate as Points III and IY. | [
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Jack Holt, Jr., Chief Justice.
This is a Freedom of Information Act case. Ark. Code Ann. § 25-19-105 (1987). The issue is whether the records of an investigation of Steve Clark, conducted by the Arkansas State Police and other investigative agencies, should be closed to the public. The trial court held that the investigative file was closed to the public until after Clark’s trial. It specifically found in its order that continued publicity would impair the court’s obligation to provide Clark with a fair and impartial trial by a jury. We agree.
On July 11, 1990, appellant Max Brantley, Assistant Managing Editor of the Arkansas Gazette, requested the investigative file concerning Steve Clark from appellee Colonel Tommy Goodwin, Director of the Arkansas State Police, and appellee Christopher C. Piazza, Prosecuting Attorney for the Sixth Judicial District. The request was initially denied by Colonel Goodwin. Brantley was subsequently notified by the prosecuting attorney’s office that it would make the requested records available on July 13, 1990, at 10 a.m. for inspection at the prosecutor’s office. Criminal charges were filed against Clark, and he, simultaneously, filed a motion seeking to have the investigative file protected from disclosure and ordered sealed. Appellant, Arkansas Gazette Company, was informed by the prosecutor’s office that it intended to fully support Clark’s motion.
As a result, the appellants thereafter filed their petition for judicial review, requesting that the trial court conduct a hearing to determine if the investigative files of the state police were public records subject to public disclosure under the Arkansas Freedom of Information Act (FOIA). A hearing was conducted on the appellants’ petition on July 12, and the trial court denied the petition. The court’s written order of July 13 recited in part that all investigative agency files regarding Clark were to be closed until a trial of Clark was held. The appellants filed a petition to modify, asking the court to modify its order to conform to the action which was actually announced by the court from the bench at the conclusion of the hearing on the appellants’ petition for review on July 12. The petition to modify was denied.
The appellants argue the investigative file is a public record under the FOIA and there are no applicable exceptions which would prevent its disclosure. They further contend the trial court erred in expanding its order to close the files of all investigative agencies, including the legislative audit, until after Clark’s trial.
The appellants’ petition for review was assigned to Judge Perry V. Whitmore, who was also the assigned trial judge in Clark’s criminal prosecution. On July 12, the parties agreed to consider both the appellants’ petition for review and Clark’s motion in the criminal proceeding. The record reflects the parties argued their respective positions before Judge Whitmore primarily on the basis of whether or not the release of the investigative file would deny Clark’s due process rights to a fair trial. The appellants contended at the hearing that the public interest in having access to the file outweighed Clark’s right to a fair trial. Appellee Piazza relied upon Rule 3.8 of the Model Rules of Professional Conduct (1985), for the proposition that, as a prosecutor, he could not disseminate the requested file to the appellants. The trial court denied the appellants’ petition on the basis that continued publicity would impair its obligation to provide Clark a fair trial by an impartial jury.
The Due Process Clause of the fourteenth amendment guarantees the right of a fair trial by a panel of impartial jurors to the criminally accused in state criminal prosecutions. Duncan v. Louisiana, 391 U.S. 145 (1968). If, due to pretrial publicity, an impartial jury cannot be seated to try a defendant, his right to a fair trial is violated. Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979).
In this case, the high level of publicity and media attention threatened to interfere with Clark’s right to a fair trial. In Gannett Co. v. DePasquale, 443 U.S. 368 (1979), the Court stated that, in order to safeguard the due process rights of the accused, a trial judge has an affirmative duty to minimize the effects of prejudicial pretrial publicity, and he may take protective measures even when they are not strictly and inescapably necessary. See also Sheppared v. Maxwell, 384 U.S. 333 (1966).
In discharging his duty, the trial court weighed Clark’s constitutional right to a fair trial against the public’s right to access to public records as provided for in the FOIA and, in exercising his authority under Ark. Code Ann. § 29-19-105(b) (8) (Supp. 1989), concluded a reasonable protective measure was warranted by the circumstances: the closing of the investigation files of the state police and the files of all investigative agencies, including the legislative audit.
This court has previously noted, “ [i] f the question is whether a defendant can or cannot receive a fair trial, as required by the fourteenth amendment to the United States Constitution, then conflicting law must give way to a defendant’s right to due process.” Anderson v. State, supra. Suffice it to say, FOIA must give way in this instance to “due process.”
Affirmed.
Turner and Price, JJ., concur.
Glaze, J., dissents. | [
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George Rose Smith, Justice.
The appellant brought this suit to condemn a right-of-way in fee simple for a controlled access highway across the. appellees’ property — a 77-acre tract near East Roosevelt Road in Little Rock. The jury determined just compensation to be $75,-000. For reversal the appellant contends that the court erred in refusing two requested instructions and in excluding evidence of the selling price of comparable property in the vicinity.
The plaintiff’s Instruction No. 4 and the substance of No. 5 should have been given. The landowners offered much testimony to show damages resulting from the new highway’s having cut off their access to a railroad and to a sewer line. Instruction No. 4 would have told the jury, substantially in the language of the statute, that political subdivisions and public utilities might use the highway commission’s land for certain enumerated purposes (including the laying of sewers-and railways) by agreement with the commission, provided that such uses did not interfere with the public use of the property for highway purposes. Ark. Stat. Ann. § 76-544 (Bepl. 1957). Counsel for the highway commission were certainly entitled to argue to the jury that the landowner’s access to the sewer line and the railroad was not necessarily being irretrievably destroyed.
In defending the court’s refusal to give the instruction the appellees merely say that any possible application of the statute was precluded by the highway commission’s complaint, which alleged that “this highway should be a controlled access highway facility . . . and therefore, the owners or occupants of abutting and adjoining lands shall have no right of existing, future, or potential common law or statutory rights of access or ingress and egress to, from, or across this facility to or from abutting and adjoining lands.” We do not so construe the complaint. All that the quoted language refers to is the landowner’s ordinary right to enter and leave a public highway that abuts his property. That right does not exist with respect to a controlled access facility. Ark. Stat. Ann. § 76-2202; Arkansas State Highway Commn. v. Bingham, 231 Ark. 934, 333 S. W. 2d 728 (1960). It does not follow, however, that the landowner is also denied the benefit of Section 76-544, supra, which, like the controlled access statute, was- passed by the 1953 legislature. There is no conflict between the two acts.
' Requested Instruction No. 5 defined a controlled access highway, in the language of the statute, and went on to say that the highway had been constructed in accordance with certain plans on file with the highway department and that if the commission should in the future change the highway in such a way as to damage the landowners, then the landowners would have a new cause of action. See Arkansas State Highway Commn. v. Wilmans, 239 Ark. 281, 388 S. W. 2d 916 (1965). We may assume, without deciding, that the appellees are right in contending that the instruction was not perfectly drawn, in that the record did not justify the court in telling the jury unequivocally that the facility has been constructed in accordance with the plans. Nevertheless, in view of the necessity for a new trial, we point out that upon proper proof the commission would be entitled to a correctly worded charge on the point.
Counsel for the commission sought to prove the price for which comparable property in the neighborhood had recently been sold. The court excluded that evidence, stating that an expert witness might consider such sales in forming his opinion about the value of the property being condemned, but, said the court, such evidence had no probative value with respect to the property in dispute and therefore should not be heard by the jury. Although we might on. this appeal sustain the court’s ruling on the narrow ground that counsel for the commission failed to make an offer of proof that the other property was in fact comparable to the ap-pellees’ land, we must consider the point on its merits, simply because it will doubtless recur upon a new trial. The court’s position was wrong. Upon a proper showing of comparability such evidence is admissible and should be heard by the jury. Arkansas State Highway Commn. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309 (1963); City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30 (1958). Indeed, proof of comparable sales 4s usually considered to be especially trustworthy, for it goes beyond the sphere of mere opinion and shows ihe values arrived at by persons having a direct pecuniary interest in the matter.
The only other controverted question that may arise upon a new trial is the appellant’s contention that the court erred in permitting the appellees to treat the land as being a single ownership, when in fact it was owned by two different corporations. Owing to the appellant’s failure to reproduce the pertinent exhibits, as required by Buie 9 (d), we are unable to say whether the court erred. We may appropriately add, however, that if the landowners are able to demonstrate their right to close certain streets that seem to have been platted but never opened, they may be in a position to insist that the tract be treated as a single ownership.
Reversed. | [
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J. Fred Jones, Justice.
This is an appeal from the Union County Circuit Court. The appellant was charged with a violation of Ark. Stat. Ann. § 41-1124 (Repl. 1964), which provides as follows:
“Every person who annoys or molests any child is a vagrant and is punishable upon first conviction by a fine of not exceeding Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not exceeding six [6] months or by both such fine and imprisonment and is punishable upon the second and each subsequent conviction by imprisonment in the State Prison not exceeding five [5] years.”
Appellant was first tried and convicted in the El Dorado Municipal Court. He appealed to the Union County Circuit Court and upon a verdict of guilty at a jury trial, the court fixed punishment of a fine in the amount of $250.00 and six months in the Union County jail. In his appeal to this court, the appellant relies on two points for reversal:
“1. The evidence viewed from its highest probative value, is not sufficient to justify a verdict of guilty of the offense charged, as rendered by the jury of six men.
“2. The Court erred in admitting the testimony of O’Neal Griffin of the El Dorado Police Force, wherein he was permitttd to repeat a statement alleged to have been made by the defendant before the Municipal Court affirming a statement he was purported to have made to the police officers immediately following his arrest, and at a time when he had not been apprised of his constitutional rights. ’ ’
We are of the opinion that there was ample evidence to sustain the conviction under the first point relied on by the appellant, but that the judgment must be reversed and the cause remanded for a new trial under the second point.
The precise question presented here, and the one on which we base our decision, is whether or not a confession made to police officers during their investigation and which is barred as admissible evidence under amendment VI of the United States Constitution can, nevertheless, be proven by rebuttal to a denial on cross-examination when offered in the form of a judicial admission at a previous court hearing that such confession had previously been made to the police officers.
The facts in this case briefly are as follows: On the -evening of October 28, 1966, two young brothers, 14 and 12 years of age, had finished with their separate paper routes in El Dorado and had started home traveling separately on their bicycles. The older child had stopped at a newsstand, and as he came out of the newsstand, a man, whom he later identified as the appellant, stopped him and asked if he was making much money on the paper route. The child talked -with the man a few minutes and started on home. When the boy reached a rail road crossing on his way home, the same man was sitting in his automobile stopped at the crossing waiting for a train to cross. The man again spoke to him and offered him Two Dollars to get into the automobile. When the boy refused, the man offered Five Dollars and advised the child of perverted sexual desires. The child refused to get into the automobile but went on home and related the incident to his mother. The mother called the city police and gave them a description of the man and the automobile, including its make, color, and the first two digits of the license number, as related to her by the child. In the meantime, the younger child arrived home, and apparently not aware of his brother’s experience, related a similar offer of Two Dollars, then Five Dollars, to go riding with a man in an automobile of the same description as related by the older boy.
When the appellant was first arrested, he was charged with driving without a driver’s license and was taken to the police station. The boys reiterated to the police officers, in appellant’s presence, what had been said to them and identified the appellant as the one who had said it.
According to Police Officer Brewster, he advised appellant of his constitutional rights against self-incrimination and to the benefits of counsel, after which the appellant admitted he had talked to the boys and had said the things they accused him of saying.
At his trial in the El Dorado Municipal Court, appellant testified in his own defense. He denied in Municipal Court, as well as in circuit court on trial de novo, that he had talked with the boys at all. The primary question at the trial on the merits, concerned the identification of the appellant as the man involved. The boys testified at the trial in circuit court as to what was said to them, and they identified the appellant as the one who had said the things he was accused of saying. We are of the opinion that the testimony of the boys alone, if believed by the jury, was sufficient evidence to sus tain the conviction. Cook v. State, 196 Ark. 1133, 121 S. W. 2d 87; Martin v. State, 151 Ark. 365, 236 S. W. 274.
At the trial in circuit court on appeal, and in anticipation of the prosecution offering proof as to a confession made by the appellant to the arresting officers, a hearing to determine the voluntary nature of the confession was properly conducted by the trial court in chambers, out of hearing of the jury. Officer Brewster testified in chambers that the appellant denied at his trial in Municipal Court that he talked with the boys, but did admit in Municipal Court that he had told the police officers that he had talked with the boys. The appellant denied making a confession or any admission of guilt to the police officers and denied being advised at all as to any of his constitutional rights.
At the conclusion of the proceedings in chambers, the trial judge announced his decision as follows:
‘ ‘... It is going to be the ruling of the Court that the admission or confession of this defendant was made voluntary, that it was made without coercion, duress, threat, abuse, enticement, or promise. However, it is not clear to my satisfaction that it was made after he was apprised of his Constitutional rights of an Attorney. That is a burden on the City to prove, therefore, it is going to be the ruling of the Court that such statement was made in response to interrogation without first advising the defendant of his right to counsel and, therefore, inadmissible.”
In anticipation that the prosecution might attempt to prove that the appellant had testified in Municipal Court that he had confessed his guilt to the arresting officers, the appellant’s attorney sought a ruling of the court on admissibility, and the court ruled as follows:
“I don’t see why such statement is inadmissible. I think that any statement made in open court is a judicial statement and if he now denies such state ment, the 'City may prove same, after laying a foundation and further, such statement is not collateral.”
Upon returning from chambers and resumption of the trial before the jury, the appellant testified in his own behalf as to his activities and whereabouts during the day and night before and after his arrest, and on cross-examination, over the objections of the appellant, he was asked questions and gave answers as follows:
‘ ‘ Q. Did you testify in Municipal Court at the time you were tried before Judge Ragsdale?
A. Yes, sir.
Q. Did you say that time you admitted doing what you are accused of doing here?
A. No, sir.
Q. You did not?
A. No, sir.
Q. You are sure of that?
A. I told him I was not guilty of that charge his officers placed on me.
Q. I asked you if you made a statement then. But you have previously made a statement that you had done what you are here accused of; have you stated that you made no such statement in Municipal Court?
A. I did not say I was guilty in Municipal Court.
Q. That’s not exactly what I asked and I think you are smart enough to know the difference. What I asked you is did you make a statement in Municipal Court what you said you had previously admitted the charges that are here brought against you in Municipal Court?
A. No, sir.”
At the close of the defendant’s evidence, the prosecuting attorney then called Officer O’Neal Griffin as a witness in rebuttal and, over the objections of the appellant, he was questioned and gave answers as follows:
“Q. Did you [sic] make any statement in Municipal Court?
A. He said that he had told us that he did talk to the hoys.
Q. Did he say anything about whether he had talked to them along the line that they had accused him of talking to them?
A. He said he had.”
Amendment VI to the Constitution of the United States is as follows:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” (Emphasis supplied.)
Article 2, § 10 of the Arkansas State Constitution is as follows:
“In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue maybe changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor, and to be heard by himself and his counsel. ’ ’
At the close of the hearing in chambers, the learned trial judge correctly stated the law pertaining to the admission of confessions in the prosecution of criminal cases. We agree with the trial court’s opinion announced in chambers that the confession accredited to the appellant by Officer Brewster was made before appellant had been apprised of his right to counsel, and that the statement was, therefore, inadmissible under the United States Supreme Court decision of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694.
Even before Miranda, in the case of Dement v. State, 236 Ark. 851, 370 S. W. 2d 191 (1963), this court said:
“It is well settled that under the Fourteenth Amendment of the United States Constitution and Article 2, § 10 of the Constitution of Arkansas acceptance of a plea of guilty without first giving or offering the accused benefit of counsel constitutes a denial of due process of law.”
In that case we cited Carnley v. Cochran, 369 U. S. 506, 82 S. Ct. 884, where it was stated:
“... the record must show, or there must be an allegation and evidence which show, that an accused was offered counsel, but intelligently and understandingly rejected the offer. Anything less is not a waiver.”
Thus it is seen that under amendment VI, supra, the right to the assistance of counsel for defense in a criminal prosecution, is a right to have the assistance of counsel, and since Miranda v. Arizona, supra, there is no question this right to have the assistance of counsel is of the same dignity as the other rights the accused shall enjoy under amendment VI.
As a general rule the trial court was correct in holding that a statement made in open court is a judicial statement and admissible as evidence against the accused at a subsequent trial, Barnhardt v. State, 169 Ark. 567, 275 S. W. 909, hut this is not true when the statement was inadmissible as in violation of constitutional rights in the first place.
The case of Bayless v. United States, 150 F. 2d 236, is a case in point. In that case, Bayless signed a confession to bank robbery when he was arrested. He pled guilty in court and was sentenced. At a hearing on a petition for habeas corpus, the court found that the defendant had not intelligently waived his right to counsel and had not been advised of his constitutional right to counsel. His plea of guilty was held void and he was granted a new trial. At the subsequent trial, Bayless was asked on cross-examination if he had previously confessed and if he had not previously entered a plea of guilty. In again reversing the conviction, the Eighth Circuit Court of Appeals said:
“The fact that this tainted evidence was offered as part of the cross-examination of defendant, is, we think, quite immaterial. The coerced confession and plea were used to convict the defendant, and as said in Malinski v. People of the State of New York, supra, ‘Constitutional rights may suffer as much from subtle intrusions as from direct disregard.’
“We again point out that here the confession and plea of guilty have been adjudged to be coerced, and hence, - there seems to be no escape from the conclusion that the conviction based, we must assume, in part at least upon this tainted evidence can not stand. The judgment appealed from is therefore reversed and the cause remanded with directions to grant defendant a new trial.”
We are of the opinion that the trial court was correct in holding that the statement made by the accused “was made in response to interrogation without first advising the defendant of his right to counsel and, therefore, inadmissible.”
We are of the further opinion that when the front door was thus barred by constitutional amendment, and properly closed to the admission of the proposed evidence by the trial court in this case; that same evidence could not be entered through the back door disguised in the robes of a judicial admission.
For the error indicated, the judgment of the trial court is reversed and this cause remanded to the Union County Circuit Court for a new trial.
Reversed and remanded.
Harris, C. J. and Fogleman, J., concur. | [
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J. Fred Jokes, Justice.
In August 1961, Paul CL Rollman died intestate in Bent oh County, Arkansas, leaving as his sole surviving heirs a daughter who is the appellant here, and a son who' is the appellee. The decedent’s estate was probated and appellee was appointed personal representative. The listed assets in the probate proceeding consisted of cash in banks, savings bonds, an automobile, a pickup truck, livestock and farm equipment. Distribution was made under a family settlement agreement whereby cash, bonds, and the automobile were distributed to appellant, and the remainder of the designated personal property, of approximately equal appraised value, was distributed to the appellee. A farm consisting of 230 acres was not listed as an asset of the estate, and was not mentioned -in the probate proceedings under the family settlement agreement.
In March 1963, approximately ten months after probation of the estate was closed, the appellant, for the recited consideration of One...Dollar and other valuable consideration, 'executed a quitclaim deed transferring to appellee and to his heirs and assigns forever, the described farm land. This deed contained a recitation that the grantor and grantee were the sole and only surviving heirs of Paul C. Rollman. In April 1964, ap-pellee executed, for the recited consideration of One Dollar and other good and valuable consideration, a warranty deed conveying an undivided one-half interest in the land to appellant, this deed contained a clause as follows:
“It is the sole cmd only purpose and intention of the grantors and the grantee in this deed to affect the title to the above described land in such manner that the grantors will not have any power to mortgage, sell, or otherwise convey said land or any part thereof without the approval and consent of the grantee.” (Emphasis supplied).
In August 1966, appellee brought this action alleging that the warranty deed given by him to appellant conveyed no rights in the property to appellant and was without consideration and void. Appellee prayed a declaratory judgment voiding the warranty deed for indefiniteness and for lack of consideration, and prayed that the deed be removed from appellee’s title as a cloud thereon.
Appellant answered with a general denial and with counterclaim for the $2,325.00 balance owed on a $2,-500.00 loan she made to appellee in June 1962. The chancellor found the warranty deed void and removed it as a cloud on appellee’s title, and gave appellant judgment for $2,325.00 against appellee. On her appeal to this court, appellant designated the following two points for reversal:
“1. The Chancellor erred in holding the Warranty Deed from Appellee to Appellant invalid and failing to give effect to it.
“2. The Chancellor erred in decreeing that the entire ownership of the involved property lay with Appellee and based the finding on the Quitclaim Deed from Appellant to Appellee.”
Appellant testified that she executed the quitclaim deed to appellant to keep him out of the Army and not as a part of the property settlement as contended by appellee. The appellee testified that he executed the warranty deed to appellant in order to defeat property rights his wife might have in the property in the event of an anticipated divorce. The avowed purpose of either party in the execution of the deeds finds no sympathy in equity, and neither would have been entitled to in voke the assistance of a court of equity in carrying out the avowed purposes in the execution of either deed.
As to the purpose of the quitclaim, deed, the evidence is in conflict. This deed isvyalid on its face and no fraud is evident in connection with its execution. The chancellor was also the prohate judge who approved the property settlement agreement, and we are unable to say that his decree that the quitclaim deed transferred good title is against the preponderance of the evidence.
In the case of Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42, this court said:
“We think a restatement of the law found in § 237, 16 American Jurisprudence, at bottom p. 570, is a correct general declaration of the law of the construction of deeds. Said § 237 is as follows:
“The modern and now widely accepted rule to determine the estate conveyed by a deed with inconsistent clauses has for its cardinal principle the proposition that if the intention of the parties is apparent from examination of the deed ‘from its four corners’ without regard to its technical and formal divisions, it will be given effect even though, in doing so, technical rules of construction will he violated. ” , _
The above quotation states the rule long adhered to by this court. See Osborne v. Clarkson, Ex’x, 237 Ark. 219, 372 S. W. 2d 622; Carter Oil Co. v. Weil, 209 Ark. 653, 192. S. W. 2d 215.
In applying the above principles to the case at bar, the conclusion is irresistible that the warranty deed in question is void. This deed, on its face, shows that there was no intent to convey title, but -the sole and only purpose and intent was to prevent appellee from disposing of the property without appellant’s consent.
The appellant contends that the deed was meant to reconvey to her an undivided ope-half interest in the property and also served as a first option to purchase appellee’s undivided one-half interest if, and when, he should decide to sell. Appellant’s contention is totally inconsistent with the plain language of the deed. The-testimony of both parties indicates that the sole purpose and intent in the execution of this deed was to do exactly what the deed purports to do, place a cloud on the title of the property described in the deed. We agree with the chancellor that the deed is void for lack of intent to convey any interest in the land and was only meant, to place a cloud on appellee’s title.
Appellant also contends that even if the warranty deed is void, appellee has failed to show a consideration for the quitclaim deed given by appellant to the appellee. Appellant testified that she executed the quitclaim deed in order to aid appellee in avoiding service in the armed forces and that no money changed hands in connection with the transaction. This deed recited consideration of “one dollar and other valuable consideration to us in hand paid” and the deed is good on its face. No fraud is alleged or proven in connection with the execution of the deed and since the deed was a present grant rather than a promise to he performed in the future, no consideration was necessary to the validity of the deed. (Ferguson v. Haynes, 224 Ark. 342, 273 S. W. 2d 23; Cannon v. Owens, 224 Ark. 614, 275 S. W. 2d 445.) The finding of the chancellor that the quitclaim deed is binding as against the appellant is not aganst the preponderance of the evidence.
The question was raised at the trial of this case as to whether the farm real estate was considered as part of the family settlement agreement in the course of the administration of the estate, or whether a deed to the farm was “delivered” to appellee by the deceased prior to his death. This question was rendered moot on both points by the validity of the quitclaim deed, and the in validity of the warranty deed. The decree of the chancellor is affirmed.
Affirmed.
Harris, C. J., Ward and FoglemaN, JJ., dissent.
Paul Ward, Justice.
For reasons hereafter set out, I cannot agree with the majority opinion relative to the portion discussed herein. The material facts will he summarized.
Appellant is a sister to appellee. On March 26, 1963 appellant, for “One Dollar and other valuable consideration” executed to her brother a Quitclaim Deed conveying her entire interest in 230 acres of land. The majority hold the consideration sufficient even though appellant testfied she made the conveyance to keep her brother out of the army.
On April 23, 1964 appellee executed and delivered to his sister, by Warranty Deed, am, undivided one-half interest in the same 230 acres. The expressed consideration in both deeds were exactly the same. The majority holds this Warranty Deed to be void — giving the sister nothing.
The sole reason for the majority holding is based on a “clause” in the Warranty Deed, which clause is copied at page two of the opinion.
The majority cite and rely on three decisions of this Court for holding the Warranty Deed “void”. They say, on page four, “This deed, on its face shows that there was no intent to convey title ...” even though the deed itself contains these words signed by appellee: “. . . do hereby grant, bargain and sell” unto appellant; “We will forever warrant and defend the title ...”
The cases referred to above and relied on by the majority are no authority to hold the Warranty Deed absolutely void, but they, and many other cases, are authority for construing and modifying the deed. To the same effect are: Brawley v. Copeland, 106 Ark. 256, 153 S. W. 101; Mason v. Jackson, 194 Ark. 236, 106 S. W. 2d 610; Jenkins v. Ellis, 111 Ark. 220, 163 S. W. 524; Jackson v. Lady, 140 Ark. 512, 216 S. W. 505; Coffelt v. Decatur School Dist. No. 17, 212 Ark. 743, 208 S. W. 2d 1, and Chicago Rock Island & Pacific Railroad Company v. Olsen et al, 222 Ark. 828, 262 S. W. 2d 882. In the Jenkins case, supra, and the Jackson case, supra, (and in many other cases) the rule is clearly stated that deeds are most strongly construed against the grantor and in favor of the grantee.
■ The result reached by the majority is, in my judgment, not only judicially unsound but it is illogical and unjust. Illogical, because, if appellee didn’t intent to convey anything to his sister, he must have known she could not prevent him from selling his own land. Unjust, because it lets appellee take advantage of his own selfish scheme.
It is, therefore, my opinion that the deed here in question (concededly being executed for sufficient consideration) can be, and should be, construed — not held to be void.
Johít A. FoglemaN, Justice, dissenting. As I view this case, appellee Rollman invoked the jurisdiction of the chancery court for a declaratory judgment that his voluntary deed of April 23,, 1964, to his sister, appellant McCuiston, is void for indefiniteness and for lack of consideration and that she has no interest in the real estate conveyed by reason of said deed. He also asked that the deed be removed from his title as a cloud thereon and for general relief.
Appellant filed an answer which constituted a general denial and asked that the complaint be dismissed. Subsequently, she filed an amendment to her answer in which, she admitted execution of the deed but denied that it was vague and meaningless. She further denied that the deed constituted a cloud on plaintiff’s title and that there was no' consideration for the deed. This pleading contained a counterclaim for money loaned. A judgment, from which no appeal has been taken, was rendered thereon. The prayer in this amendment was that the complaint be dismissed for want of'equity, and for recovery of the money loaned with a lien upon her brother’s “undivided one-half interest.”
The chancellor saw and heard the witnesses and made detailed findings of facts. One of these: was that the primary, if not the sole, reason for the execution of the deed was to prevent the wife of appellee from acquiring some interest or ownership in the property by reason of then impending marital difficulties between appellee and his wife. He further found that the prime, if not the only, reason for the inclusion of the phrase in question was to make it impossible for his wife, under any circumstances, to acquire some proprietary interest in this tract of land. The chancellor was warranted in finding that these facts were undisputed, or virtually so.
Under these circumstances, I do not feel that the appellee is entitled to any relief in a court of equity, even though appellant was a party to the attempted fraud. In McClure v. McClure, 220 Ark. 312, 247 S. W. 2d 466, a chancery court’s decree, setting aside a deed executed for the purpose of defrauding a husband’s creditors on the ground that the wife was a party to the attempted fraud, was reversed. This court said that such a grantor was not permitted to invoke the assistance of equity in setting aside the deed because he did not come into court with clean hands. This court has held that a grantor who was agreeable to perpetrating a fraud on his wife and creditors by execution of a deed was barred by the “clean hands doctrine” from claiming that the deed was intended to be a mortgáge. Marshall v. Marshall, 227 Ark. 582, 300 S. W. 2d 933.
In Fullerton v. Fullerton, 233 Ark. 656, 348 S. W. 2d 689, a husband brought a suit to cancel a certain deed made hy third parties to his former wife during the marriage and to quiet and confirm the title to the real estate thereby conveyed hy him. The husband appealed from a decree of the chancery court holding that the land was the sole and separate property of the former wife. Mr. Fullerton contended that he had left money with his wife in order that she could make the payment of the purchase money when the deed was delivered. Mrs. Fullerton claimed that he insisted that the ■title be put in her name. 'The only reason she could suggest for this was that he had an ex-wife who he thought might sue him for some back alimony and that he probably thought some little girls, under age, that he had gone with might sue him. The chancellor found that the title was placed in Mrs-. Fullerton’s name as a gift from the husband, but the husband sought to overturn this finding because of her testimony that the title was placed in her to permit him to defeat the collection of some potential judgments. This court said that this testimony could not benefit him because a husband who conveys land to his wife in fraud of creditors is not permitted to invoke the assistance of equity in setting aside the deed since he does not come into equity with clean hands.
I do not see how this court can justify the granting of equitable relief to appellee.
Because of this view, I see no purpose in discussing the effect of the earlier quitclaim .deed from appellant to appellee. I agree with the chancellor that this is not really important to the decisive issues in the case. He stated that he mentioned it only as a matter of interest because it came up in the evidence. It is notable that the quitclaim deed is not mentioned in the court’s decree, although there is a finding that appellee is the owner of the land. Although I do not feel that this question is actually in issue, there is sufficient evidence sustaining validity of the quitclaim deed that we could not say that the court’s findings were against the preponderance of the evidence. I would reverse and dismiss.
I am authorized to state that Harris, C. J., joins in this dissent. | [
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John A. Fogleman, Justice.
Appellant seeks reversal of a judgment for $833.25, 12% penalty and attorney’s fees on a claim under an insurance policy covering hospitalization resulting from accidental injury.
Appellee, a 79-year-old lady, was residing in the home of her sister after having been in a convalescent home until February 1, 1966. She took out the policy of insurance on May 4, 1965. On February 13, 1966 she suffered an injury as the result of a fall while walking from her bedroom to the bathroom during the night. She was taken by ambulance to St. Vincent’s Infirmary at the direction of Dr. Andrew A. Pringos because of severe pain in her lower back resulting from the fall.
She remained in the hospital under care and treatment by the doctor until March 10, 1966. She was bedridden while in the hospital. Physical therapy during her hospital stay was given to enable her to again employ a walker she had previously used because of an injury unrelated to this fall. Appellee’s doctor testified that the precipitating cause of her hospitalization was her fall. In addition to a contusion of the back and loss of equilibrium, appellee suffered from shock and depression during her hospital stay.
The trial judge, sitting without a jury, found that the appellee’s injury and hospital residence were the result of an accident under the terms of the policy and gave judgment for compensation for the full period.
The policy provides for payment of benefits “in the event of hospital residence occurring solely as the consequence of direct bodily injury resulting from any accident and independently of all other causes.”
Appellant’s basic contention is that the trial court erred in allowing recovery for the last five days of appellee’s stay in the hospital. It asserts that this portion of her hospital residence was not solely the result of her fall. The testimony of all parties indicates that the primary reason for her being kept in the hospital for this period was the unavailability of a room or bed in a convalescent or nursing home.
Appellant has cited no authority for its contention that the court’s findings are contrary to the law and evidence. We have been unable to find any decision covering a similar situation. There can be no doubt, under the undisputed facts, that the incidence of the hospital residence was the consequence of direct bodily injury resulting from accident and independent of all other causes.
If the pertinent policy clause can be said to be ambiguous, we must construe it to justify a recovery if a reasonable construction will do so: Travelers’ Protective Association of America v. Stephens, 185 Ark. 660, 49 S. W. 2d 364; Metropolitan Life Ins. Co. v. Guinn, 199 Ark. 994, 136 S. W. 2d 681; Life & Casualty Ins. Co. of Tennessee v. Kinney, 206 Ark. 804, 177 S. W. 2d 768.
An obvious inference to be drawn from the testimony is that the residual consequences of appellee’s injuries required care and treatment unavailable in her home, but available in a nursing home. While appellant is not responsible for the want of nursing home accommodations, continued residence in..„the hospital appears to have been the only alternative. This is sufficient to support the findings of the trial court that hospitalization for the last five days was accrued solely as a consequence of her accidental bodily injury.
Inasmuch as the allowance of attorney’s fee and penalty hinges upon the correctness of the trial court’s action on the amount of recovery bn the policy, no question remains as to these items.
The judgment is affirmed and appellee is allowed an additional sum of $250.00 for attorney’s fee. | [
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George Rose Smith, Justice.
This is a suit filed in the chancery court by the appellants, patrons of Moro School District B, to enjoin the Lee County Board of Education from putting into effect an order by which that Board consolidated the Moro District with Marianna School District A. The chancellors sustained the Board’s motion to dismiss the complaint for want of jurisdiction, holding that the plaintiffs should have appealed from the Board’s order of consolidation to the circuit court.
Petitions for consolidation of the two districts were filed with the Board. That body, purportedly acting under Ark. Stat. Ann. § 80-408 (Repl. 1960), gave notice that the petitions would be heard on May 15, 1967. On that date the appellants appeared to protest the consolidation, but the Board voted unanimously to merge the two districts.
No appeal was taken from the Board’s order. Instead, the appellants filed this suit in chancery, alleging in substance that the petitions for consolidation were not signed by a majority of the patrons of the Moro District. It is the appellants’ theory that Section 80-408, providing for an appeal to the circuit court, was repealed by Act 21 of the Second Extraordinary Session of 1965. (Act 21 is not included in the Arkansas Statutes Annotated, for the reason that the compiler considered it to be temporary legislation. See Volume 8, Tables, p. 487.)
At the outset there can be no doubt that if Section 80-408 is still in force, the appellants have mistaken their remedy. That statute declares in explicit language: “Appeals may be taken to the Circuit Court from the findings of the board on the ground that the requisite number of electors have not signed the petition, or because the notices herein required were not given.” The appeal must be taken within thirty days. Section 80-236; McLeod v. Richardson, 204 Ark. 5 , 163 S. W. 2d 166 (1942); Gibson v. Davis, 199 Ark. 456, 134 S. W. 2d 15 (1939). The remedy by appeal is adequate and exclusive. Vaught v. Frey, 219 Ark. 525, 243 S. W. 2d 384 (1951); Portland Sch. Dist. No. 4 v. Drew County Bd. of Education, 217 Ark. 725, 233 S. W. 2d 66 (1950).
We are firmly of the opinion that Act 21 did not repeal Section 80-408. Act 21 provided for a comprehensive review of the public school system throughout every county having two or more school districts. Section 3 of Act 21 created a County School Study Commission composed of three members from each local school board and three members from the county board of education. By Section 4 of the act the Study Commission was directed, not later than August 1, 1966, to prepare a preliminary plan for the reorganization of school districts within the county. A public hearing was to be held not later than October 1, 1966. Thereafter, not later than March 1, 1967, the Study Commission was required to approve a reorganization plan and submit it to the State Board of Education. By Section 7 of Act 21 ten percent of the voters in the districts affected by the plan could petition for a special election at which the electors in the affected districts could approve or reject the plan. Section 13 of Act 21 had this repealing clause: “This Act is intended to be cumulative and not to have the effect of repealing any laws or parts of laws not in irreconcilable conflict herewith. All laws and parts of laws in irreconcilable conflict herewith are hereby repealed.”
There is no irreconcilable conflict between Act 21 and the pre-existing school laws. In fact, there is no conflict at all. The two statutory schemes are intended to accomplish two different purposes and may co-exist side by side. Act 21 provided for a county-wide study and plan of reorganization that might well affect every school district in the county. It could be put into effect only on petition of ten percent of the voters in the affected districts and by a majority vote of the electors in those districts.
By contrast, Section 80-408 deals with day-to-day mattérs that often involve only one or two districts. Under that statute the county board of education may form a new district, dissolve an old one, consolidate two or more districts, or detach territory from one district and add it to another. It is clear that if Act 21 were the sole method of reorganizing school districts, as the appellants contend, there would be a serious, even tragic, omission in the school laws as a whole. That is, there would be no way for a county board to make adjustments, such as the transfer of territory from one district to its neighbor, however badly such adjustments might be needed. Quite obviously such purely local matters ought not to depend for accomplishment upon county-wide action. We conclude that there is no irreconcilable conflict between the earlier statutes and Act 21, whether it be regarded as temporary or permanent legislation.
Affirmed. For good cause shown an immediate mandate will issue. | [
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Paul Ward, Justice.
This is an action to invalidate the result of an election in Arkansas County which imposed a one mill tax on real and personal property to be used for the maintenance of a public library. The tax issue was submitted at the General Election held on November 8, 1966.
No testimony was introduced before the trial court, and the essential facts presently set out are either undisputed or were stipulated by the parties.
(a) The tax issue was not presented to the voters in Stuttgart because that Citv had already voted a tax to maintain a municipal library.
(b) A “proper” ballot, as prescribed by the Election Commissioners, should have been printed in this form:
FOR a one mill tax on real and personal property to be used for maintenance of a public county library service or system, (followed by a “box” to be used by the voter to indicate his choice.)
AGAINST (followed by the same words and “box” that follows “FOR” above).
(c) Some of the printed ballots were “proper” and some had no “box” after “AGAINST” and also omitted the word “system”. These ballots will be referred to as “defective” ballots.
(d) “Proper” ballots were distributed to all “absentee” voters and to one voting precinct.
(e) “Defective” ballots were distributed to the other twenty-one voting precincts.
(f) The compilation of the votes (under supervision of the trial judge) reflects:
—For the tax 1506,
—Against the tax 1035, and
—Not voting 1540.
On December .9, 1966 Court Gordon and others (residents and property owners of Arkansas County), appellees, filed a complaint in circuit court against E. E. Gregory et al (Election Commissioners), appellants, alleging in substance that the use of “defective” ballots “operated as an obstruction to'the free and intelligent casting of the vote” and created “a doubt as to how the election would have resulted if the ballots had not been defective”. The prayer was, in essence, that “the said one mill tax be set aside” as “void and illegal”. Appellants entered a general denial.
Following a hearing on the issue raised the trial court entered a judgment, holding: The relief sought by plaintiffs (appellees) is granted; the one mill tax is hereby set aside and held for naught, and; the one mill tax on real and personal property in Arkansas shall not be assessed.
For reversal appellants make two contentions: One, the suit was not filed in time; Two, the “defective” ballots did not affect “the free and intelligent casting of the vote”
One. It is here contended by appellants that the case must be reversed because appellees failed to comply with Ark. Stat. Ann. § 3-814 (Eepl. 1956), but we see no merit in this contention.
The mentioned section, in material parts, reads:
“Whenever it shall appear by affidavit that an error or omission has occurred ... in the printing of ballots, the Circuit Court . . . shall, upon the application of any elector, by order, require the County Election Commissioners to immediately correct such error ...”
It is admitted by appellants that appellees’ complaint was filed within the thirty-day period provided by law. The answer filed by appellants, in material part, reads:
“The defendants deny each, and every allegation contained in the complaint of the plaintiffs and the amendments thereto.”
As previously stated, no oral testimony was introduced. Consequently it definitely appears from the record that the matter of an “affidavit” was not raised by appellants in the answer or in the facts stipulated by the parties.
This Court has many times held that an objection not raised in the trial court cannot be raised for the first time on appeal. This rule is particularly applicable here. If the matter of an “affidavit” had been raised in the trial court or in the stipulations appellees might have been able to supply the same. This Court does not know, and will not presume, appellees could not have done so.
Two. The other point relied on by appellants is stated as follows:
“Errors appearing on the face of a part of the ballots . . . were insufficient to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result.”
Again, for reasons presently stated, we do not agree.
First, we call attention to the following statutes which are applicable here. They all appear in Ark. Stat. Ann. (Repl. 1956)
§ 3-811
“All election ballots provided by the County Election Commissioners of any county in this State for any election shall be alike . . (Emphasis Supplied).
§ 3-822
“Upon receiving his ballot, the voter shall proceed to mark it by placing an ‘X’ m the appropriate squares ...” (Emphasis Supplied).
It is not denied that about 95% of the voters in this election were furnished “defective” ballots. Also, the record reflects that there were 3970 - votes cast in the Governor’s race; that on five other issues the percentage of votes (based on 100% for Governor) ranged from 83% to 96%; and, that on the “tax” issue only 61% voted. The record further reflects that where “proper” ballots were furnished 87% voted on the “tax” issue, but where “defective” ballots were furnished only 60% voted.
In 29 C. J. S., Elections, § 173, page 486, we find this statement: >
“An Election for the submission of a proposition will be invalidated by failure to follow the prescribed form in a matter of substance, as, for example, failure to afford the voter an opportunity unmistakably to vote in the negative on the proposition submitted, and the defect cannot be cured by the statement of a majority of the electors that they voted in favor of the proposition.”
At page 487 it is further stated:
“. . . the test to be applied is' whether the ballot used gives the voter as clear an alternative to vote for or against the proposition as is given by the statutory form.” (Emphasis ours.)
The real issue before the trial court was whether the use of the “defective” ballots' caused, or reasonably may have caused, some voters not to vote or to vote for the “tax”. The trial court held this to be the result. We cannot say the trial court erred in so holding.
Affirmed. | [
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Conley Byrd, Justice.
The appellants, Thorp Thomas, Chester Boyer, Leon Brents, Charles F. Wells, Everett Hamm Jr., and Gene Wirges, bring their separate appeals, consolidated here, challenging the authority of the trial court to assess court costs against them upon dismissal of criminal charges against them.
Except for the insertion of the individual names of appellants, the orders entered by the trial court read, ‘ ‘... it is by the Court . . . ordered . . .that the indictment against the said Thorp Thomas be dismissed and that Thorp Thomas be discharged, upon payment of costs.”
The order assessing court costs against the defendant upon dismissal of the indictment is void and of no effect, Melton v. State, (Ala. Ct. of App.) 1 So. 2d 920 (1941), and is a violation of due process of law, Giaccio v. Pennsylvania, 382 U. S. 399 (1966). Nor was any objection necessary since the court exceeded its authority, Sibley v. Leek, 45 Ark. 346 (1885).
Reversed and dismissed. | [
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. Cockrill, C. J.
The appellees, in an action brought before a justice of the peace against Charles P. Stephens, caused an attachment to be levied upon personal property claimed by the appellant. She gave bond for its retention, and filed an inter-plea in the suit, claiming the property as her own. Upon the trial of the interplea in the circuit court, proof was offered by both parties, tending on the one hand to show a bona fide purchase for an adequate consideration, by the interpleader from' the attached debtor, before suit was instituted; and on the other part, circumstances were adduced from which a jury might have concluded that the sale was a mere pretense—that there had been no real change of ownership.
The court gave the jury the following instruction: “You are instructed that the burden of proof, in this case, is on the interpleader, and. that before she is entitled to a verdict she must show, by the preponderance of such testimony as you believe to be true, that she was the owner of the property claimed by her in this suit, at the time of the issuance of the attachment by the justice of the peace, and that her alleged purchase of said property from C. P. Stephens was bona fide, for a valuable consideration, and not fraudulently made.”
The interpleader asserted title to the property and the omcs was on her to prove it. She occupied the attitude of plaintiff against whom judgment would be given if no evidence were offered. State v. Spikes, 33 Ark., 801; Waples Att., p. 481.
In casting the burden of proof on her to that extent the instruction was right, but it was error to direct the jury that she must show affirmatively that her purchase was not fraudulent. Fraud must be proved by the party asserting it, and until proved the presumption of good faith prevails. Hempstead v. Johnson, 18 Ark., 123; Clinton v. Estes, 30 Ib., 216; Beecher v. Bookfield, 33 Ib., 259; Holt v. Moore, 37 Ib., 145; Greenl. Ev., Secs. 34, 80.
In treating this subject in 2 Wharton Ev., Section 1248, the author says : “So far, however, as concerns the direct application of the maxim to civil issues, we must regard it in the same way as we regard the presumption of innocence, as an assumption of the law for the determination of the burden of proof, and not for the adjudication of the merits. A person who is sued is charged with bad faith, and the burden is on the plaintiff to prove the charge, or the defendant sets up bad faith in the plaintiff, and the burden is on the defendant to make this defense good. But when the actor, in either relation, establishes a prima facie case and this is met by evidence sustaining good faith on the other side, then the case must be decided on its merits.”
The exception to the rule which shifts the burden of showing good faith affirmatively by the purchaser in the first instance, applies only to an act which, in itself, is prima facie illegal, as where such a fiduciary relation exists between the parties as to render it certain that they do not deal on terms of equality. But this has no application here, and in no case is-fraud presumed unless such circumstances are shown as will legally justify the inference. It is to be proved, not presumed; but the instruction goes upon the contrary theory.
For this error the judgment must be reversed, and as the case will be remanded for a new trial, it is proper to suggest to the trial court that the third instruction, given at the instance of the attaching creditor, may be subjected to the objection that it intimates the court’s opinion on the weight of the testimony. The court is inhibited from doing this. See Randolph v. McCain, 34 Ark., 702; Flynn v. State, 43 Ib., 295. It is unfortunate that the court is so circumscribed and its powers so far restricted in this respect, but the law is so written.
Reverse and remand for a new trial. | [
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Cockrill, C. J.
The appellant was indicted for selling liquor to a minor and was convicted. The proof was that the minor, not wishing to involve the whisky sellers in trouble by making a purchase directly from any of them, gave the appellant, whom he met on the- street in the town of Malvern, fifty cents and requested him to go and purchase whisky for him. Pie took the money, purchased the liquor for the minor with it at a saloon in which he was not employed or interested, returned and delivered it to the minor. The appellant was an old acquaintance of the minor, and was himself an employe in a saloon.
The court refused to charge the jury as follows:
“If the jury believe from the evidence that Ward, the minor, gave the defendant fifty cents and requested him to buy its worth of whisky, and that defendant took the money and went to Taylor & Peyton’s saloon, it not being the saloon at which the defendant was a salesman, and purchased the whisky and gave it to Ward, it is not such a sale as is contemplated by the statute, and the jury will find for defendant.”
It is apparent that the real seller of the liquor in this case was the dealer of whom the whisky was' bought. The minor was the purchaser, and the appellant was his agent to make the purchase. The appellant was not the actor in making the sale to the minor, and to this extent he is not within the words of the statute, which inhibits the sale of liquor to minors. Mansf. Rev. St., Sec. 1878; Young v. State, 58 Ala., 358.
The statute makes no mention of persons who aid, abet or procure the sale of liquor to minors, but the rule of construction requires that the common law be taken into account in ascertaining the meaning of the act. State v. Pierson, 44 Ark., 265.
The rule of the common law is that all persons concerned in the commission of a crime, less than a felony, if guilty at all, are principals. 4 Black. Com., 36; Hubbard v. State, 10 Ark., 378; Sanders v. State, 18 Ib., 198; Freel v. State, 21 Ib., 219.
Hubbard v. State, sup., was a case of an indictment against one for trespass on the Sixteenth section lands, a statutory offense. There was no evidence that the person indicted had ever been upon the lands, but the acts of his slave, done under such circumstances as warranted the inference that they were done by his command or procurement, were held to be sufficient to establish his guilt.
In Sanders' case, sup., a conviction was upheld upon proof that a public highway had been obstructed, not by the defendant in person, but by another who was not indicted, the court, through English, Ch. ]., saying: “It was not necessary for the defendant to have felled the timber across the road himself, or for it to have been done by his immediate direction, to make him responsible for the offense. In misdemeanors all persons, who procure, participate in, or assent to the commission of a crime, are regarded as principals, and are indicted as such.”
This was the rule applicable to statutory offenses, prior to the enactment of the prohibitory liquor law, and one may incur the guilt of a principal in this, as in other misdemeanors, by aiding in or procuring the violation of the law. Walton v. State, 62 Ala., 197; State v. Monson, 25 Ohio St., 381; State v. Rand, 51 N. H., 361; Johnson v. People, 83 Ill., 431; Bish. St. Cr., Sec. 1029.
The buyer of liquor, however, is guilty of no offense under this act, although he aids in and’ procures the making of the sale. The statute has marked the seller as the only criminal. “In cases of mala próhibita, the fact that the penalty is imposed on only one of two parties whose concurrence is requisite to the commission of the offense, and that the statute was made for the protection of the other party, who is generally regarded as the less culpable of the two, has repeatedly been considered good .ground for giving the statute a construction exempting the party not named from criminal liability.” State v. Rand, supra. See too, 1 Bish. Cr. Law, Sec. 657 and note 4; Harney v. State, 8 Lea, Tenn., 113.
As the minor was guilty of no offense the appellant cannot be punished for his complicity in the minor’s act of purchase. If he had done nothing more than counsel and advise the minor in getting the whisky, he would not have violated the terms of the statute and could not be held to criminal responsibility. One cannot be punished for violating only the spirit of a penal law. But he has-done more. He aided and abetted the liquor-seller, and procured him to make the sale to the minor. This is the offense the statute' is aimed at. The essence of the offense is a sale to a minor.
If the transaction showed a sale of liquor to the appellant and a subsequent gift of it by him to the minor, no offense would have been committed, because there would have been no sale to the minor, and giving liquor to a minor is not inhibited by the statute. That was the case in Ward v. State, ante, where it was held that a dealer, who sold liquor to one treating a minor, could not be convicted of selling to a minor. But the court is careful to say in that case that there was nothing to indicate that the person, who treated the minor, acted as his agent in the transaction. If he had acted as the minor’s agent, and the liquor-dealer had been apprised of that fact, the latter would have been guilty of selling to the minor, Young v. State, 58 Ala., sup.; Seigel v. People, 106 Ill., 89, and the agent would have been guilty as an aider and procurer of the sale.
The fact that the minor was absent when the sale was effected cannot alter the case. One may buy through an agent, and when there is no question of agency, although the dealing is with and the delivery to the agent, in legal effect the sale is to the principal. It is true that when the agency is undisclosed the seller may treat the transaction as a sale to the agent, and the agent will be estopped from showing for his benefit a state of facts different from what he has made to appear in the transaction. The principal, in such case, is still bound as such, however, if the agent acted within his authority, and as between agent and principal, the principal is always the contractor and purchaser. Seigel v. People, 106 Ill., sup.; Wharton Agency, 496, 431; 2 Kent’s Com., *631; Winchester v. Howard, 97 Mass., 303; Caldwell v. Mesherd, 44 Ark., 564.
That the state, in a criminal prosecution, can elect to treat it as .a sale to the principal, instead of a sale to the agent who actually procured the liquor,'is sustained by adjudicated cases. See Com. v. McGuire, 11 Gray, 460; Com. v. Very, 12 Ib., 124; Com. v. Latinville, 120 Mass., 385.
Taylor & Peyton’s guilt is immaterial. The guilt or innocence of the actor or principal in the first degree, even in felonies, does not affect the guilt of the principal in the second degree, to make use of a common law term, Mansf. Rev. St., Sec. 1511, and it is immaterial whether the person who was the chief actor in making the sale might or might not have been convicted. “However men combine, each one is criminally responsible for what he personally does, . . . for the whole of what he assists others in doing, and for all that the others do through his procurement.” Bish. St. Cr., Sec. 1024. The appellant had the evil design of procuring a sale of liquor to a minor, and his act directly and immediately led to the commission of the offense. This made him a principal in the offense.
The instruction asked by the appellant would have authorized his acquittal, if he did not sell, although he may have aided and abetted and procured the sale to be made, and was properly refused.
The court’s charge to the jury was not inconsistent with the views here expressed, and the judgment is affirmed. | [
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Eakin, J.
This is a case in equity, involving title to a tract of land decsribed as the west half of the S. W. 1-4 and the S. E. 1-4 of the S. W. 1-4 of Sec. 33 in T. 8, S. of R. 22 west. The pleadings are somewhat confused by a cross complaint, and by answers and demurrers on both sides ; but the matter seems to have got pretty fairly, at last, before the Chancellor, 'on the merits, each party seeking to quiet his or her title against the other. The Chancellor granted this relief to Mrs. Cossart, who was the original complainant, and Calloway appealed.
Calloway claims through a Sheriff’s deed, made upon a sale of the lands under a fieri facias issued in favor of the trustees of the Real Estate Bank against Thornton and Bozeman, on the 3d of November, 1847. The land was purchased by the trustees and the deed was executed to them on the 13th of March, 1848. Afterwards all the bank assets, in the hands of the trustees were transfered to a Receiver in the Pulaski Chancery Court, who, by order of the court, sold and conveyed these lands to Calloway on the 19th of January, 1881. The lands had been levied upon as the property of Thornton, and it was necessary for Calloway to show title in him.
This he endeavors to do by showing a deed for this land from Joseph Delany and wife to Walter C. and Wm. F. McLaughlin on the 28th of October, 1837. This deed recites that full payment had been made for the land to the Government, and that a patent certificate had been issued to the grantor, Delaney. Next, a deed from Wm. F., of his interest, to Walter C. McLaughlin, on the 13th of December. 1839. Next, a deed from Walter C. McLaughlin to ¿amuel Gibbins in September, 1840. An abstract from the books of the State Auditor shows in the column of original owners of the land, sometimes Joseph Delany alone, and sometimes Joseph Delany and A. B. Caruthers. It was assessed in 1839 in the name of W. C. & W. F. McLaughlin, in 1840 to W. C. McLaughlin and in 1841, 1842 and 1843 to Samuel Gibbins.
This is all his documentary evidence, which it will be seen does not connect at either end of the line, between the Government and Thornton. The recital in Delany’s deed that he had paid for the land and received the patent certificate cannot be used against strangers to the deed. At the other end, the connection fails to reach Thornton, the defendant, in the fieri facias. This hiatus it is attempted to supply by oral evidence. Mrs. Nancy E. McLaughiin, a daughter of Gibbins, testifies that she knows the place, and lived on it with her father, who occupied it about five years. The widow of A. B. Caruthers was living on it when she testified. When, exactly, that was, is not shown, although the deposition appears to have been opened, filed and published in. July, 1883. She was 58 when she testified, and was about 15 when her father moved on- the place, which would extend his occupation of it from about 1840 to 1845, about two years before the levy of the fieri facias. She says that her father sold the place to Thornton and moved elsewhere. He made a deed to Thornton, but her mother did not sign it. She says that after her father sold to Thornton, she knows of four different families living on the land in different years. Her testimony is corroborated in all points by that of Wm. Crow, a witness, 61 years of age, well acquainted with the land. He says he knows all the facts set forth in her deposition and adopts her statements, although he does not specially mention the deed to Thbrnton, nor give any independent testimony.
Wm. H. Weir, a resident of the county and well acquainted with the place, says that A. B. Caruthers fenced up a portion of the Gibbins’ field just before the war, but had not lived on or cultivated any portion of it before that time.
Calloway, defendant to the original bill, says that [he has made diligent search for the deed from Gibbms to Thornton, referred to by Mrs. McLaughlin, but without success. Thornton went to Mexico before 1848, and has never returned. About the period referred to very few persons were in the habit of having their deeds recorded. Real property was sold and possession transferred, he says, pretty much as personal property was. He has no personal knowledge that Thornton ever had a deed or had possession, or paid any taxes. Since his own purchase in 1881, he has never himself had possession nor paid any taxes. He bought it at the Receiver’s sale at public auction for $20. It is worth about $500. When he bought, he had heard and knew that Mrs. Cossart claimed the land.
The effect of this oral evidence seems to be that the loss of the Thornton deed and the impossibility of getting possession of it as an instrument of evidence, if it ever existed, was sufficiently established to admit secondary proof by parol, of its existence and effect, and that it was sufficiently proved to make, prima facie, a chain by which title was dereigned from Delany to Calloway, although it still fails to reach back to the Government for want of proof that Delany was the pantentee or had the patent certificate. It seems to make also a prima facie case of adverse possession in Gibbins presumed to continue in' Thornton up to a period shortly before the war, when a part of the land was occupied and fenced by Caruthers. Not a very strong case, but sufficient to prevail as a prima facie one against any claimant not able to show a better title. This would be an adverse possession long enough to ripen into a positive title under the Statute of Limitations, unless rebutted, or in some way neutralized. Walker v. Towns, 23 Ark., 147, presents a similar case. And this title would pass to the trustees, and through the Receiver to Calloway, regardless of the value of the land, or the price he paid for it, or the mere knowledge of an adverse claim, provided that claim had no just foundation. We turn now to the case made by Mrs. Cossart.
She does not attempt to trace title by any writing from the • original, nor any common source, but rather to establish it by adverse possession-after its occupation by Gibbins and sale to Thornton. She is challenged in limine with the assertion that she may not do that; inasmuch as the purchase by the Real Estate Bank trustees carried the equitable title to the State, and no laches may be attributed to sovereignty.
The connection of the State with the organization of the . i , rr • a old Real Estate Bank is matter of history, and its affairs have been sQ often regulated by public Statutes, that in all general aspects, they have become matters of judicial cognizance. The State did not own the bank nor its assets. It aided the bank with its bonds and looked to its assets for security or indemnity. The stock was subscribed by individuals and the payment secured by land mortgages, which, with all other assets, constituted its capital and made its basis of credit. To this alone the State looked in common with other creditors.
The assignment made by the bank to trustees on the 2d day of April, 1842, was not specially-for the use of the State. It was in trust to pay; 1st, balances due for services and salaries; 2d, sums due depositors, and balances due individuals and other banks; 3d, to call in and pay outstanding circulation; 4th, to pay interest on certain State bonds issued to the bank; 3th, to pay bonuses falling due to the State according to the terms of the charter; 6th, to pay the principal of the State bonds aforesaid, and 7th, to repay what was actually received on another lot of bonds which had been hypothecated and passed into the hands of the Holfords. Under this assignment the trustees were acting, -who bought in the lands levied upon as the property of .Thorn-ton. Such property as they acquired passed under the trust and became mingled with the general assets.
Afterwards upon suit by the State against the residuary trustees, a decree was rendered in the Pulaski Chancery Court, by which the trustees were relieved of further duties, and all the property and effects placed in the hands of a receiver, to be managed and administered under the control of the court. This decree was entered on the 20th of April, 1855. No useless delay was contemplated in the preservation of the assets, or in realizing the proceeds. It was expressly made the duty of the receiver , to sue for and recover all property, real and personal belonging to the bank, or said trustees, which might be held adversely by any one.
It is obvious that all these were plain business transactions after the grant of the original franchises. The attitude of the State with regard to this property, or her rights of indemnity in it, w;as just such as might have been assumed by any individual or private corporation, which might have chosen to lend its credit to' the bank. When a State steps down into the arena of common business in concert, or in competition with her citizens, she goes divested of her sovereignty. The reason of the maxim, “Nullum tempus occurrit regri" no longer applies. U. S. Bank v. McKenzie, 2 Brock (C. J. Marshall’s Dec.), 393; U. S. v. White, 2 Hill, N. Y., 59; Fields v. Wheatly, 1 Sneed, 351; Bank of Tenn., v. Dibrell, 3 Sneed, 379; Bank of U. S. v. Planters' Bank of Ga., 9 Wheaton, 904; Angell on Lim. 6 Ed. Sec. 41.
There was nothing to prevent the trustees at any time, nor the receiver after them, from suing at once for these lands, and the title which had ripened in them by adverse possession, might be transferred again in the same manner.- Mrs. Cossart might show that by a- subsequent adverse possession for a sufficient time, on the part, of herself or those under whom she claimed she had acquired a better right.
It seems to be conceded that at a very early date A. B. Caruthers was the owner by original entry, and this is shown by oral proof; but the same evidence goes further to show that he had sold and conveyed it to Joseph Delany, before the beginning of the chain of conveyances upon which the defendant Calloway relies. There is nothing to show color of title in Caruthers by patent, or any subsequent conveyance to him from any quarter. It is shown that many years afterwards, and after the title by limitation under Delany’s claim of conveyances had ripened into an investiture in favor of those claiming under him, he did claim that he could still hold the land, because his deed to Delany had never been recorded. In this he was, of course, mistaken. A. short time before the war, he entered upon the land, and enclosed a part, but as the beginning of a new title, this proof can amount to nothing, as he had no color to define boundaries, and the extent of his possession is not given. He cannot occupy a better position, by this, than that of a mere trespasser. How long the possession continued is not shown.
On the 8th of August, 1866, he executed to Brown a deed of trust to secure certain debts. Brown sold under the deed and conveyed to McMillan in Febv 1871, and McMillan to Joseph Cossart in August following. Cossart was a party to a suit in the United States Circuit Court for the district in 1879, in. which suit Kramer had been appointed a receiver, and by order of the court, made in December of that year, Kramer sold and conveyed to Mrs. Nancy Cossart, the complainant below.
An abstract from the tax books of Clark County shows that for the years 1868, 69, 72 and 73, the lands were noted as Bank lands, but were, in 1871, marked to A. B. Caruthers.
Neither conveyances, nor color of title, nor payment of . taxes, nor all combined can give title to land under the Statute of Limitation. There must be proof of adverse possession for the requisite time. Valid conveyances from, those having title, require no statute to support them. We fail to find any evidence of such possession on the part of Mrs. Cossart, or those under whom she claims.
The Chancellor based his decree upon the ground that no-title was shown in Thornton. If this were true it might have been sufficient to warrant the dismissal of Calloway’s cross complaint, but we think the Honorable Chancellor-erred in his ' conclusion. The evidence preponderates largely to show that from the time of Delany’s deed to the McLaughlins, to the time of Gibbon’s sale to Thornton, and down to very nearly the beginning of the war, the claim and possession of those under whom the Bank held was adverse and uninterrupted.
Disputed titles, depending upon oral testimony, where deeds have been lost, or conveyances neglected, should be early quieted by aid of the best lights which the court may obtain, when it appears hopeless that better may be had.
Reverse the decree, and let a decree be entered here, quieting the title of Appellant Calloway against all claims of the appellee. | [
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Cockrill, C. J.
The appellee sued the railroad for.a severe personal injury received by him through the negligence, as he alleged, of the company, while he was a passenger on one of its trains. There was a verdict and judgment in his favor for $1000. »
The errors assigned by the company in the motion for a new trial are: That the verdict is against law and evidence, and that the court erred in giving “ instructions numbered one and. three for the appellee.”
The bill of exceptions'as certified in the transcript sets forth three instructions given by the court at the instance of the appellee. Before the submission of the cause, however, and before filing his abstract the appellee suggested a diminution of the record and sued out a writ of certiorari. In return to this the clerk certified the skeleton bill of exceptions, just as it existed when filed in his office. From this it appears that none of the instructions copied into the bill as first certified were actually incorporated in it, but after the words, “ the plaintiff then asked the court to give the following instructions,” it proceeds thus: “(The clerk will here please insert instructions, numbering them).” The question whether this sufficiently identifies the instructions given at the instance of the appellee is pressed by his counsel upon our consideration.
Prayers for instructions to the jury submitted to the court by the parties to an action, are not a part of the record of the case. It is the province of the bill of exceptions to bring them ■.upon the record, when it is desired to review their correctness here.
When the bill of exceptions is allowed and signed by the judge, nothing remains to make it part of the record, except filing it. Mansf. Rev. St., Sec. 5160. It would seem to follow that “when the bill receives the signature of the judge it should be complete, and this we understand to be the substance and spirit of all the decisions. There is to be no further discussion, no further discretion; the record is made. . . . A record must speak for itself. It must show upon its face alL that it is. It must be its own evidence of all it contains. No part of its contents may rest upon the discretion of the clerk, the recollection of the judge, or the testimony of counsel.”' A. & N. Railroad v. Wagner, 19 Kans., 335. But to insure this, certainty it is not essential that everything that finds a place in the bill be written out in full. The rule, in such cases, is, that we will regard that as certain which can be made so. Sterman v. Cravens, 2p Ark., 34.8. But certainty to a reasonable intent has always been required by this court. Sexton v. Brooks, 15 Ark., 348; Dillard v. Parker, 23 Ib., 503; Woolfirk v. Wright, 28 Ib., 1; Sterman v. Cravens, sup.; Johnson v. Terry, 35 Ib., 220; Carroll v. Bowles, 40 Ib., 167.
In Carroll v. Bowles, sup., instructions were incorporated in the motion for a new trial, and the motion was set out in full in. the bill of exceptions ; but, as the instructions were not otherwise identified by the bill, and as the motion could not be made the vehicle of bringing them to the notice of the court without this, they were disregarded as not being a part of the record.
A general reference in the bill to a motion for new trial does not make a part of the record any motion the clerk may choose to certify to this court; but where a motion is certified to us which has been filed in the cause, and an order of court appears overruling it, the motion is sufficiently identified. Johnson v. State, 43 Ark., 391. It was necessary to overrule several decisions of this court in order to reach this degree of latitude.
A fair and liberal practice is adopted by the supreme court of the United States, in the case of Leftwitch v. Lecann, 4 Wall., 187, and is as follows : “ If a paper which is to constitute a part of a bill of exceptions, is not incorporated in the body of the bill, it must be annexed to it, or so marked by letter, number or other means of identification mentioned in the, bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.” See, too, A. N. Railroad v. Wagner, sup.; Wells v. Railroad, 56 Iowa, 520; Tuscaloosa v. Logan, 50 Ala., 503; Powell App. Pro., p. 233, Sec. 33, a, and note.
This rule is less strict than is required by many of the cases, but if strictness to this extent be not exacted, a different paper from that intended may be inserted in the bill by mistake or design, and the question which would afterwards arise on the record be materially affected.
Tested by this rule no instructions given on the motion of the appellee are a part of the record. The clerk is merely requested to “insert instructions as given, numbering them.” How he is to determine what instructions were given is not designated. The number of the instructions is not made known, nor even the fact that they were reduced to writing and numbered. The clerk is left to determine for himself what he shall insert, and no guide is given by which an error made by him could be corrected. If the clerk should copy only a part of the charge, or commit any errors in making the copy, the injured party would be met by the objection that there was no identification of anything to correct or amend by, as was done in Johnson v. Terry, sup. In that case the bill as originally signed does not appear as in this case, and no effort was made by either party to expunge the instructions from the record. As to the practice on this point, see State v. Van Zandt, 71 Mo., sup., and Morrison v. Lehew, St. Louis Ct. App., 21 Cent. L. J., 413.
The appellant has offered to establish by affidavit here, that the instructions appearing in the bill were those given by the court. We entertain no doubt of the truthfulness of the affidavit, but it can add nothing to the record, and the necessity for it only demonstrates the wisdom of the rule requiring certainty in such matters.
The only error assigned and presented by the record is the sufficiency- of the evidence to sustain the verdict. Upon this point we entertain no doubt.
Affirm the judgment. | [
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Eakin, J.
This suit was brought by R. G. Atkinson & Co. against Chapline. They say in their complaint, that the firm of Davis, Blythe & Co. were sub-contractors under Chapline in railroad work, and owed plaintiffs a debt of $1,586.49. In order to pay that they gave plaintiffs an order on Chapline, dated October 5, 1882, directing him to pay over to plaintiffs any sum which might be due them from defendant, for any kind of work done on the railroad, and advising him that plaintiffs would re ceipt for the same. On presentation of this order, on the 18th of October, defendant endorsed on it a conditional acceptance, to the effect, that after deducting from the estinqate of September, what Davis, Blythe & Co. owed him and their laborers, he would pay the balance over to the attorney for plaintiffs. They say that after said deductions there remained a balance on said estimates of $1,586.49, which defendant became liable to pay.
Another count charges that defendant to avoid threatened legal proceedings against his sub-contractors, made, in addition to the endorsement, a verbal agreement with plaintiffs, whereby they agreed to abandon legal proceedings and give Davis, Blythe & Co. sixty days time, and defendant on his part agreed to pay the claim of plaintiffs of $1,586.49, in two equal installments, at thirty and sixty days, or so much of it as would not be settled out of the .September estimates.
A third count sets up the same agreement and consideration on the part of plaintiffs, for the verbal promise of defendant, and varies it by making his promise to pay in installments conditional—provided that Davis, Blythe & Co. should execute to him a mortgage of their tools, instruments, and property used in working upon their contract. It is alleged that they did execute such a mortgage.
A fourth count sets' up a promise made by defendant to Davis, Blythe & Co. to pay their debt to plaintiffs, in consideration- of the mortgage as stated above, and that the mortgage was executed.
The defendant in separate paragraphs denied that anything remained due Davis, Blythe & Co., on the September estimates, after paying himself and the laborers; and also that he had made the parol agreement as alleged; or that Davis, Blythe & Co. had ever executed to him any mortgage to secure him in ’ paying plaintiffs. He further pleads the statute of frauds.
. There was a trial by jury, verdict and judgment for plaintiffs, motion for a new trial, bill of exceptions, and appeal.
There was no proof sufficient to sustain a verdict, that the conditions had occurred upon which the draft was accepted; that is to say, that Chapline had anything left out of the September estimates, after paying himself and the laborers. If the judgment be sustained it must be on the counts setting up the parol promise of Chapline to pay the debt of Davis, Blythe & Co., by accepting two drafts at thirty and sixty days.
The evidence tends to show that Davis, Blythe & Co. owed the debt to plaintiffs. That they were sub-contractors, under Chapline, working upon a railroad ; that the estimates of their work were furnished each month to Chapline, by the engineer, and were credited by Chapline on their account. That plaintiffs were about to'commence proceedings upon their claim against D., B. & Co., by attachment, and went to a lawyer for that purpose. What their grounds of attachment were is not disclosed. It seems to have been taken for granted by the parties that the attachment proceedings would have been begun but for the arrangements then made. Chapline accepted conditionally a draft drawn upon him in favor of Plaintiff by D., B. & Co.; and agreed by his endorsement of acceptance to pay on the same what might be left coming to them on the September estimates, after retaining what they owed himself, and a further amount due their laborers. It was afterwards developed that nothing was left in his hands to be paid on that draft. He further agreed, verbally, with Plaintiff that if D._ B. & Co. would give him a mortgage on their tools and property, employed in their work, to accept for the balance of their claim, not satisfied by the September estimates, two drafts drawn by D., B. & Co., in favor of plaintiffs at thirty and sixty days. There was no express agreement for forbearance on the part of plaintiffs, or for further time to be given D., B. & Co,, or that their debt should be considered as discharged, but forbearance resulted, and a jury might be authorized from the circumstances to infer that such an agreement was implied, and that Plaintiffs rested upon that promise, and looked to it for satisfaction of their debt.
They, through their agent, at once took active steps to have the conditions fulfilled upon which the promise depended. They called upon D., B. & Co., and induced them to consent to give the mortgage, and advised Chapline of the result. He renewed the promise, and advised them to send out blank drafts for execution when the mortgage should be made. They. did so, and Chapline, having in the meantime got the mortgage, •declined to execute the drafts. He claimed that the object of the mortgage was to secure himself in his own debt, and that D., B. & Co., had refused to give a mortgage to indemnify him against the proposed acceptances. He took possession of all the property included in the mortgage, next day, although the debt which it professed to secure was not due, and has held the property ever since.
The debt of Plaintiffs was about $1,575. The mortgage was to secure a debt to Chapline of $2,000 in round numbérs. That is, it is so expressed upon the face. There is no proof of any particular debt owing to Chapline, although it is stated generally that they were in debt to him on the estimates. One of . the witnesses for Chapline says that the sum of $2,000 was fixed because it was the average of their ordinary running account. But it appears also that their estimates for work per month were that much or more.
The evidence as to some of these matters is conflicting, but this seems to be the result of its preponderance. There is much in detail which has but little bearing. It is tolerably plain that D., B. & Co., were not in debt to Chapline at the time of the September estimates; but, if anything, were entitled to ■credits for August work. There is nothing definite to show any considerable indebtedness subsequently.
Was the promise valid under the Statute of Frauds ?
The agreement to accept stands, with regard to the statute, on same footing with an agreement to pay, and must, be in writing if a promise to pay should have been. A leading case upon this point is Carville v. Crane, 5 Hill [N. Y.), 483, but it has been often recognized as sound doctrine in other cases cited by Mr. Browne in-his work on Statute of Frauds, Sec. 174, et seq. and notes. It applies to all promises whereby the promisor agrees to put himself in such condition that he may himself be compelled to pay the debt of another.
The real question, and the only one presented, is this: Did the proof authorize the jury to find a condition of circumstances which would take this promise to accept out of the range of the Statute of frauds ? There has been some conflict of. decision concerning the class of cases, where, after the creation of the original debt, a third party subsequently agrees to pay the same. The difference in views has been as to what is necessary to take the case out of the Statute, and uphold a parol promise.
In Kentz v. Adams, 12 Ark., 174, this Court distinctly recognizes the doctrine, that a promise by a third party to pay the pre-existing debt of another, becomes an original undertaking> not within the Statute, where there is a new consideration, moving to the promisor from the person to whom the promise is made. This is rested upon English authorities cited in the opinion.
This doctrine was distinctly recognized and taken as well established in the case of Hughes v. Lawson, 31 Ark., 613. The promise therein judgment was held void for want of the new consideration. In the language of Mr. Justice Harrison, “ There was no evidence of any new consideration moving to, or inducing the defendant to assume the debt as his own, by which the debt of Hudson (the original debtor) would have been discharged. No purpose of his own was shown to be subserved by his promise.”
It may be remarked that in order to take a promise out of the Statute of Frauds, the disfcharge of the original debtor is a circumstance, almost, if not quite conclusive, and there is no further question as to the promise being original. It is simply novation. But it is not conclusively a collateral contract in the sense of -requiring a written memorandum, because the original debtor remains bound also. Browne on Stat. of Frauds, Sec. 212 & n. 1.
The rule formulated from the authorities by Mr. Roberts, [Rob. on Frauds, 232), is that the Statute of Frauds does not attach if the consideration of the promise “ Spring out of any new transaction, or move to the party promising upon some fresh and substantive ground of a personal concern to himself.”
Chief Justice Kent, in Leonard v. Vandenburgh, 8 Johns., 29, adopted the statement of Mr. Roberts, supra. He divided the cases of promises to pay the debt of another into three classes: 1st. Where the guarantee is collateral to the principal contract, and' is made at the same time and becomes the essential ground of the credit given. 2d. Where it is subsequent to the original debt, and not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. In this case the consideration of the original contract cannot attach to the subsequent promise, and some further consideration must be shown. To these two classes, he says, the statute applies, but not to the 3d, when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties. In support of this he cites the case of Williams v. Leper, 3 Burr., 1886, as one proceeding upon this distinction.
It is to be observed that this Court in the case of Kentz v. Adams, supra, cites this same English case in support of the doctrine, that a new and superadded consideration for the promise, distinct from the original liability, and moving between the party promising and him to whom the promise is made, is an original and not a collateral undertaking. We are aware that the classification of such contracts, made by Chief Justice Kent, and the distinction taken between the second and third classes, has been much criticised from the bench of other States and in treatises on the Statute, but it seems to us most-consonant with reason, and the fair meaning of the Statute. However, that may be, it has been, the doctrine of this Court for more than two score years, without question or dissent. It is not res nova.
The classification of Chief Justice Kent and the principles applicable to the classes, were adopted and followed by the Supreme Court of the United States, in the case of Emerson v. Slater, 22 How., 28. Mr. J ustice Clifford delivering the opinion, said: “Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal debtor are, in general, within the Statute of Frauds. Other cases arise which also fall within the Statute, where the collateral agreement is subsequent to the execution of the debt, and was not the inducement to it; on the ground that the subsisting liability was the foundation of the promise on the part of the defendant, without any other direct and separate consideration moving between the parties. But whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, o.r damage to the other contracting party, his promise is not within the Statute.”
The distinction between the second and third class of cases is obvious. In the second, the main purpose and object of the promisor is to make himself a guarantor of a subsisting debt, in which case, although some new consideration is required, he is in the contemplation of the Statute, as one answering for the debt of another. In the third case he is pursuing his own busi ness views and seeking'his own benefit, to be promoted by the promise. It becomes then like a promise to do any other act for a personal consideration, and is not within the mischief of the Statute, “although,” as Mr. Justice Clifford says, “it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability. He also cites the cases of Williams v. Leper and Leonard v. Vredenberg.
The courts of Massachusetts have held the same doctrine, making the distinction to rest upon the main purpose of the promisor, father than upon the effect of his promise when performed, to discharge, or not. to discharge, the debt of another. It is clearly and explicitly announced by Shaw, C. J., in the case of Nelson v. Boynton, 3 Met., 396. In accord with that is Alger v. Scoville, 1 Gray, 391. Numerous other English and American decisions are cited to the same effect by Mr. Parsons in the text and notes of his work on contracts; Vol. III, pp. 24 et seq., 5th edition. All this line of decisions go back and rest upon the leading case of Williams v. Leper. With this line Arkansas is in accord, and notwithstanding a great weight of respectable authority contra, which holds this third class of cases within the Statute also, and which considers the distinction of Chief Justice Kent as frittering away all the benefits of the Statute, we see no good reason to change position.
By this principle the instructions of the court, and the finding of the jury in this case are to be tested.
For plaintiffs the court instructed: 1st. That if they should find that Davis, Blythe & Co. were indebted to plaintiffs, who were proceeding to enforce their claim against them; and that defendant in consideration of a forbearance on their part to sue, promised that he would pay plaintiffs the amount of their claim, in thirty and sixty days, if Davis, Blythe & Co. would execute to them a mortgage on their property, being then used in and about their contract, and said mortgage was so executed, substantially in pursuance of said contract; and they further believe from all the facts proven, that the transaction was one, the main purpose of which was to subserve the business and pecuniary purposes of defendant, then the contract would not be within the Statute, nor would it be required to be in writing, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability. To this instruction there was no exception saved.
2d. Against . objections, the court instructed, that an agreement to forbear suit on a claim of the plaintiffs against Davis, Blythe & Co. is a valid and sufficient consideration in law to sustain a contract. This is literally correct and had some bearing on the issue, in as much as the plaintiffs must, of course, have shown a valid contract made on sufficient consideration. It does not touch the question of whether such a contract would be within the Statute of Frauds. A contract without good consideration would not be valid, whether oral or written.
3d. Against objections, the court further instructed for plaintiffs : That if they found that Chapline took the mortgage on Davis, Blythe & Co.’s property to secure the debt due plaintiffs, or to indemnify him against loss by virtue of his paying said debt, then he cannot be allowed to contend that there was no valid consideration for a promise by him to pay said debt. This also goes to the validity of the consideration, and is not upon the point of the necessity of writing. It is the law, and could not have misled an intelligent jury. It appeared from the pleadings that the promise was verbal to pay the debt of Davis, Blythe & Co., or at least, an amount to be determined by that, and the onus was on the plaintiffs to show two things : 1st, a contract valid in itself, and 2d, a contract of such a nature' as not to be within the Statute of Frauds. The three instructions were each pertinent to one or the other of these points.
For the defendant there was an instruction regarding the written acceptance which requires no notice.
The court declined to give an instruction numbered 3 as asked by defendant, to the effect, that no promise to pay the debt of another is valid, unless based upon a valid consideration and reduced to writing. Therefore, if the jury should find that the defendant promised, if plaintiffs would forbear instistuting legal proceedings against Davis, Blythe & Co., and that said promise was not in writing, they would find for defendant ; unless they further find that by reason of said forbearance the defendant received some benefit or advantage not before enjoyed.
This instruction was given, however, by striking out the words “ not before enjoyed.” We do not think that was erroneous, or that the modification was injurious to the defendant, in the light of the evidence. The main object and business purpose of a contract or promise may be to continue on a securer footing, benefits previously enjoyed, and that object may form the predominating motive for a personal undertaking. Besides the evidence is indisputable that Chapline did get a benefit and advantage from the promise not theretofore enjoyed. Through it he obtained the mortgage and full possession of property suitable to the conduct of his business. It was an advantage he very much desired, and one important to him in a business view.
4th. For defendant, the court instructed that if the jury found there had been a pre-existing debt from Davis, Blythe & Co. to plaintiff, and that defendant promised to pay it, they should find for him, unless the promise was in writing or based upon a new consideration, enuring to the benefit of defendant; and also,
5 th. The mere agreement on the part of plaintiffs to forbear legal proceedings is not a binding * * on the defendant, and is not a sufficient consideration upon which plaintiffs can base a promise on the part of defendant to pay their debt unless put in writing; and if the jury should find that defendant agreed to pay plaintiffs the amount of their debt against Davis, Blythe & Co., but that said promise was made on the sole consideration of plaintiffs agreement not to sell, they should find for defendant. This instruction was correct and prudently required to correct any possible misapprehension of the effect of the two instructions for plaintiff regarding the validity of the consideration.
Taking all the instructions together they seem to us remarkably clear, discriminating and well guarded, and to have been given under a very accurate conception, by the Hon. Circuit Judge, of the principles governing the case.
It is further urged, that the verdict cannot be supported by the evidence. It was a question for the jury to determine whether the promise to accept the drafts was prompted mainly by the motive of securing to plaintiff the payment of their debt; or whether it was made to subserve the business interests and pecuniary profits of the defendant. They might properly judge of this from all the circumstances brought to their notice, and from their general experience of human motives. Chapline was, himself, a contractor, dependent for his payment on the efficient operations of his sub-contractors. He had control of their property used in the prosecution of the work ; no security for such debts as he might find it convenient to allow his contractors to make. An attachment of their property would seriously impede his business operations. He adopted the most efficient mode of averting that, by coming in and agreeing with the creditors upon something satisfactory. Through and by means of his promise he enlisted their services in procuring a mortgage, which he probably could not have got by his own persuasions, independently of the pressure which the plaintiff could bring to bear. He at once took possession of the property and has held it since, free from all risks of attachment, and has secured himself by the mortgage in a sum which, from all that appears, is sufficient to protect him from loss, even on accepting the drafts.
If the jury concluded that this was altogether a business transaction, prompted by business motives and a calculation of pecuniary benefits to be derived from the arrangement, we cannot say there was no evidence to justify it.
We find no error in overruling the motion for a new trial.
Affirm. | [
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Smith, J.
The indictment in this case charged that the defendant, using and controlling a certain house as a drug store, did unlawfully in said house, by device and strategem, sell ardent spirits. A demurrer to it was overruled, and after conviction, a motion in arrest of judgment, upon the ground that it specified no offense known to the laws.
The statute enacts that any person owning or using or controlling any house or tenement of any kind, who shall sell or give away, or cause or allow to be sold or given away, or keep or allow to be kept for sale or to be given away, any alcohol, ardent or vinous spirits or malt liquors, or any compound or tincture commonly called bitters ór tonics, whether the same be sold or given away, openly or secretly, by such device as is known by “the blind tiger,” or by any other name or under any other device, shall be deemed guilty of a misdemeanor. Mansf. Dig., Sec. 1926.
The history of this legislation is, that after the sale of intoxicating liquors had been prohibited in certain districts, either by special acts, or by a vote of the people refusing to sanction the system of licensing, or by an order of the county court putting in force the local option law upon a petition of the majority of the adult inhabitants of a given territory, all sorts of contrivances were resorted to to evade the operation of the law. Such contrivances came to be popularly known as blind tigers. They were devices by which the liquor-seller sought to ply his vocation, and, at the same time, to conceal his criminal agency in the act of selling. The statute aims to suppress clandestine or indirect sales of liquors in communities where open sales could not be licensed, and also in communities where a license might have been obtained, but the seller undertook to sell without one.
The present indictment does not attempt to describe the particular device employed by the defendant. But it follows , the general language of the statute and was sufficient to apprise him of the nature of the accusation against him, so as to enable him to prepare his defense and to plead the judgment in bar of a second prosecution for the same offense. This is ordinarily all that is required in the case of a statutory misdemeanor. State v. Witt, 39 Ark., 216.
Nor was it necessary for the indictment to aver that the defendant had no license. A licensed vendor does not incur the penalties of the act. But the exception in his favor is not found in that part of the act which creates the offense, but in a subsequent clause. Consequently it is a matter of defense to be shown at the trial and needs not to be negatived in the indictment. State v. Bailey, 43 Ark., 150.
The testimony tended to show that the defendant’s drug store was in the town of Fayetteville, where it was unlawful to sell liquors under any circumstances; that a bottle of whisky was commonly kept on the prescription case; and that from this his customers, or at least such of them as were initiated into the secret, helped themselves without saying anything to the proprietor or his clerks. Payment was made by laying the money on the prescription case, or by depositing it in a cigar box, which stood near by and had a small slit cut through the top of it.
The circuit court charge^, in substance, that if the jury believed that liquor was obtained of the defendant in this manner, it was a sale by a device within the meaning of the statute. There was no error in this. And as the verdict is conclusive upon the question of fact that sales were thus made, the judgment is affirmed. | [
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Smith, J.
The indictment was for abortion, and the charging part of it, was in these words : “ The said Mat. Reed, on the 20th day of December, 1883, in the county of Logan, aforesaid, unlawfully and feloniously did administer and prescribe to one Mary Moore, a woman with child, a large quantity of medicine and drugs, with intent, then and there, and thereby, to produce abortion,” etc.
A demurrer to the indictment was sustained, and the defendant discharged. The state has appealed.
The statute, upon which the indictment was drawn, reads-as follows : “ It shall be unlawful for any one to administer or prescribe any medicine or drugs to any woman with child, with * intent to produce an abortion, or premature delivery of any foetus before the period of quickening, or to produce, or attempt to produce, such abortion by any other means;” and the offense is made a felony. Mansf. Dig., Sec. 1589.
The indictment does not conforta to the statute, because it does not allege that the criminal act was done “before the period of quickening;” that is to say, before the time when the woman has felt the child move within her. Rex v. Phillips, 3 Campb., 73. Sec. 1536 of Mansfield's Digest, had already made a successful abortion, resulting in the death of a quick child, manslaughter.
But at the common law it was a misdemeanor to cause the miscarriage of a pregnant woman. Hence, the mere unsuccessful attempt to produce it, was also indictable. Bishop on Statutory Crimes, Sec. 744 and authorities cited; State v. Slayle, 82 N. C., 653. Our statute, in adopting the common law of England, provides that in cases of crimes and misdemeanors, the punishment of which is not fixed by statute, the offender shall be punished under the provisions of the common or statute 'law of England, in force prior to the fourth year of King James the I., but the punishment to be only fine and imprisonment, the fine not exceeding one hundred dollars, and the imprisonment not exceeding three months. Mansf. Dig., Sec. 567.
It follows that the court erred in adjudging that the indictment disclosed no offense known to our laws, if it was otherwise sufficient in form. Nor does it matter that the charge was laid as a felony, whereas, in fact, it was only a misdemeanor. It was the duty of the court to try the defendant as for a misdemeanor, and if he was convicted to give judgment accordingly.
The indictment does not name the particular drug that was used. The English precedents are more specific in this respect. Yet, in an indictment for the statutory felony, we should no t hold this to be a fatal defect. Bishop on Statutory Crimes, 2 ed., Sec. 756, and cases cited in note 8. And there is no good reason why greater strictness should be required in proceeding for a common law misdemeanor than for a felony.
The present indictment was returned May 21, 1885, more than twelve months after the alleged offense. But it is no ground for demurrer that a prosecution is apparently barred by limitation. On the trial, the state must' prove that the offense was committed within the period of the statute bar, or else that the running of the statute has been suspended, as by a fleeing from justice, or the pendency of another indictment for the same crime. Scoggins v. State, 32 Ark., 215; State v. Gill, 33 Id., 129; Gill v. State, 38 Id., 524.
This construction of the statute against abortions involves the apparent absurdity that the mere unsuccessful attempt to procure an abortion, not followed by the death of mother or child, is a felony if practiced upon a woman before the fifteenth or sixteenth week after her conception; whereas, it is only a misdemeanor if practiced after that time. But it is a stij.1 greater absurdity to hold that the later attempt is no offense at all; as would be the consequence if the common law on this subject is wholly superseded.
Judgment reversed and cause remanded, with directions to overrule the demurrer, and require the defendant to plead. | [
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Tom Glaze, Justice.
This is a sales tax case. The appellee, Simpson Press, Inc., prints advertising brochures for direct mail advertisers. When requested by one of its customers, the appellee uses its mail permit with the post office to purchase the necessary postage and mail the brochures. Under this arrangement, the appellee first sends its customer the estimated cost of postage. After the customer pays the estimated cost, appellee then purchases the postage and makes an adjustment if necessary to the customer’s account by either charging an additional amount or giving a credit. The appellee charged a sales tax on the advertising brochures, but has never charged a sales tax on the postage charges.
Appellant, the Arkansas Department of Finance and Administration, performed a sales tax audit on the appellee and assessed a sales tax on the postage charges as being part of the gross receipts the appellee received for the sale of the advertising brochures for the period of June 1, 1981, to May 30, 1987. By agreement, the amount of the assessment was set at approximately $263,487. After the assessment was sustained by the administrative judge, the appellee paid the tax under protest. The appellee filed suit in chancery court and argued several reasons why the tax money should be refunded including a constitutional argument that a tax on sales of the advertising brochures’ themselves violated the first amendment of the United States Constitution.
In granting the appellee a refund, the chancellor made the following findings: 1) the appellee acted as an agent for its customers in purchasing postage and the funds received from the customers as reimbursement were not part of the total amount of consideration for the sale of the advertising brochures; and 2) the appellee completed its contract with its customers when it delivered the brochures to the post office. The chancellor also held that the assessment of a sales tax on the sales of printed advertising material was not unconstitutional. The appellant appeals from the chancellor’s refunding of the sales tax on the postage charges, and the appellee cross-appeals from the chancellor’s holding that sales tax was not unconstitutional. We find no error in the appeal or cross-appeal, and therefore affirm.
Under Gross Receipts Tax Regulation, GR-3 (C)(1) the term gross receipts or gross proceeds means the total amount of consideration for the sale of tangible personal property and certain services. Under statutory law, a sale is declared to mean the transfer of either title or possession, except in the case of leases or rentals, for a valuable consideration of tangible property, regardless of the manner, method, instrumentality, or device by which the transfer is accomplished. Ark. Code Ann. § 26-52-102(a)(3)(A) (Supp. 1989). In addition, a sale shall not include furnishing or rendering of services, except as provided. Ark. Code Ann. § 26-52-102(a)(3)(E). Also pertinent to the issues presented here, we note that the service of printing of all kinds, types, and characters is taxed. Ark. Code Ann. § 26-52-301(4) (Supp. 1989).
Clearly, the appellee’s printing of its customers advertising brochures is subject to tax. However, the question before this court is whether the purchasing of postage and the delivery of the brochures to the post office for its customers should be included as part of the sale. We answer this question in the negative for two reasons.
Under Gross Receipt Regulation 18(a), relied upon by appellant, all freight or transportation charges are part of the gross receipts or gross proceeds on which tax must be collected and remitted unless the freight is charged directly to the purchaser by the carrier. But, here we are dealing with postage bought for the appellee’s customer to mail out advertising brochures to consumers and not freight and transportation added to the sale price for the item to reach its buyer.
For this reason, we agree with the chancellor that in performing the postage and mailing service for its customers, the appellee merely acted as their agent. Appellee billed its customers for the estimated cost of the postage and used the money to purchaser postage and to mail the brochures pursuant to its customers’ instructions. Afterwards, the appellee adjusted the customers’ accounts to reflect only the actual postage costs. In sum, the appellee was merely offering a service for its customers’ convenience. As stated above, a sale shall not include the furnishing or rendering of services, except as provided in Ark. Code Ann. § 26-52-102(a)(3)(A) (Supp. 1989). While the service of printing is included in the Arkansas Gross Receipts Act, we see no mention of a postage and mailing service.
Next, even if we were to treat the purchasing of postage in this case the same as freight and transportation charges, we still would conclude that the charges should not be included as part of the sale. As stated earlier, a sale is declared to mean the transfer of either title or possession. In determining whether transportation charges incurred in delivering goods to a buyer are subject to taxes, the factor having the most bearing is the passage of title to the goods from seller to buyer. See Annotation, Transportation, Freight, Mailing, or Handling Charges Billed Separately to Purchaser of Goods as Subject to Sales or Use Tax, 2 A.L.R.4th 1124 (1980). When a court determines that title did not pass until after the transportation charges had been incurred, such charges are held subject to tax. Id, But, in those instances when title passed prior to the incurring of transportation charged, the charges have been held not to be subject to sales or use taxes. Id.
We followed this reasoning in Belvedere Sand & Gravel Co. v. Heath, 259 Ark. 767, 536 S.W.2d 312 (1976), which is cited in the foregoing annotation. In Heath, Belvedere was assessed a sales tax on charges for hauling sand and gravel. While Belvedere sold sand and gravel, it had no trucks to haul the material. However, if the customer did not have any means of transportation for the sand and gravel, Belvedere would provide indepen dent haulers to deliver its product to the purchaser at the point designated and add the charge on the customer’s bill. On appeal, Belvedere argued that it merely served as a conduit for payment of the hauling charges and that its sale of the sand and gravel was made at the point of origin. We disagreed and held that Belvedere’s sale contract with its customer was not complete until the product was delivered at the point of designation. In other words, since title or possession did not pass until after the transportation expenses had been incurred, those transportation charges were subject to a sales tax.
Unlike in Heath, the present case involves a service of printing and the parties’ contract was complete when the brochures were printed. After the printing of the brochures, the appellee offered the additional service of purchasing postage and mailing the brochures, if requested by the customer. Also, contrary to Heath, there was no evidence showing that the appellee’s sales contract was completed upon delivery to a designated point. In sum, appellee’s postage and mailing service described herein, should not be included as part of the sale of the advertising brochures.
Likewise, we affirm the chancellor’s holding on the cross-appeal that the assessment of the sales tax on the sales of printed advertising material was not unconstitutional. Under Ark. Code Ann. § 26-52-301(4), all printing services are taxed. Unlike in Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987), this sales tax provision does not burden rights protected by the First Amendment by discriminating against only a small group. All persons having advertising brochures printed are treated the same regardless of the method of distribution. We fail to see how the application of this tax provision can be discriminatory. See Larey v. Dugan-Allen, 244 Ark. 908, 428 S.W.2d 71 (1968).
For the reasons stated above, we affirm.
We note the appellant also argued there is insufficient evidence of agency. We have recited considerable evidence that supports appellee’s agency theory and we find no need to discuss this point further. See Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968). | [
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Robert L. Brown, Justice.
The sole issue in this appeal is whether an accommodation maker who has paid off a promissory note owed a bank and been formally assigned that note can recover the amount paid against the co-maker of the note. The facts in this case are not in dispute, although the parties bitterly dispute the conclusions that can be drawn from those facts.
Appellant Jeff Mobley and appellee John Harmon had been friends for a long time, and in 1981 Harmon asked Mobley to cosign a promissory note and assist him in getting a $10,000 loan from First National Bank of Russellville. The bank loan officer preferred to lend the money to Mobley, whom he knew, and have Harmon co-sign the note. On October 20, 1981, both parties signed a note as makers in the amount of $ 10,000. The proceeds of the loan, in the form of a cashier’s check, went solely to Harmon as payee. The note was due and payable in full on April 20,1982. Also, on October 20, 1981, Harmon gave Mobley a note in the amount of $10,000 due and payable in six months and conditioned on Harmon’s failure to pay the Russellville bank. The bank note was not paid, and collection of the second note is not an issue in this case.
Harmon made payments on the loan and then defaulted, and Mobley subsequently assumed responsibility for the payments. These payments by both makers reduced the note principal to $6,776.77. The note was extended several times by the bank. The first four extension agreements were signed by both Harmon and Mobley and were dated April 23,1982; October 22, 1982; April 21, 1983; and October 31, 1983.
In January, 1984, Harmon moved to Texas. Also in 1984 Mobley had open heart surgery. After Harmon’s move, four additional extension agreements were signed by Mobley and the bank without Harmon’s consent: May 14, 1984; December 10, 1984; July 8, 1985; and January 7, 1986. In the case of each of those extensions, Mobley testified that he did not get Harmon’s signature because “I either couldn’t find him or he refused to come back [from Texas], one or the other.” Harmon testified that he refused to sign one of the extensions and “then he [Mobley] quit communicating with me.” While in Texas Harmon filed for bankruptcy but intentionally did not schedule the Russellville bank debt. Neither Mobley nor the Russellville bank filed claims in bankruptcy. Harmon returned to Arkansas in 1986.
The last extension agreement was signed by Mobley on January 7,1986, and it extended the due date on the note to July 8, 1986. However, Mobley decided to pay off the note two days after signing the last extension and did so on January 9,1986. On that same date the bank formally assigned its interest in the note to Mobley.
Mobley filed suit against Harmon on March 28, 1989, to recoup the amount paid to the Russellville bank. After a trial before the court, the judge held in favor of Harmon and dismissed Mobley’s lawsuit on the basis that Harmon’s liability was discharged under the Uniform Commercial Code.
We reverse the trial court’s decision.
We begin by noting that Harmon and Mobley claim the same status as accommodation maker, and each party fervently asserts that the other was the primary maker. It is true that the bank clearly wanted Mobley as the primary maker because it had had no dealings with Harmon. But Harmon received the full benefit of the loan, which was undoubtedly orchestrated for his benefit.
We have said in recent cases that the intention of the parties is the most significant element in determining accommodation status, and where a person receives no direct benefit from an executed note, it is likely that he will be regarded as the accommodation party. McIlroy Bank & Trust v. Maestri, 297 Ark. 130, 759 S.W.2d 808 (1988); Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987). We therefore agree that the total circumstances support the trial court’s determination that Mobley was the accommodation maker.
This case is then governed by the Uniform Commercial Code, and conflicting sections are involved. The Code first discusses liability between the accommodator and the person accommodated:
(5) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.
Ark. Code. Ann. § 4-3-415(5) (1987). This section would appear to give Mobley clear recourse against Harmon.
Yet in a subsequent section the Code impairs that right of recourse and discharges certain parties to the note, including note holders, under facts which exist in this case. See Ark. Code Ann. § 4-3-606(l)(a) (1987). The particular defense that inures to Harmon’s benefit is discharged under the impairment-of-recourse section:
(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
(a) Without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, . . .
Ark. Code Ann. § 4-3-606(l)(a) (1987).
That is precisely what occurred in this case. The bank agreed to suspend the right to enforce its note against Harmon, when it looked only to Mobley to sign the last four extension agreements. Harmon in no way consented to any extension after October 31, 1983. The Commercial Code is clear that the last extension agreed to by Harmon “authorized a single extension for not longer than the original period” unless otherwise specified. Ark. Code Ann. § 4-3-118(f) (1987). That would authorize an extension for six months, or until April 30, 1984. Beyond that date Harmon and Mobley were in default, and when the bank chose to extend the obligation four more times with only Mobley’s agreement, it effectively released Harmon. This discharge defense was available to Harmon had the bank sought collection on the note.
We followed this same rationale in the Maestri case. There, the facts were different in that the bank (Mcllroy) sued the accommodation maker who raised the impairment-of-recourse defense. The law as stated in Maestri applies to this case:
The words “agrees to suspend the right to enforce” signify the granting of an extension of time for payment. Hence, the holder of the note, Mcllroy, discharged any party to the instrument, including accommodation makers, to the extent that Mcllroy granted an extension without the consent of the party or without an express reservation of rights.
297 Ark. at 134, 759 S.W.2d at 809. It makes no difference under section 4-3-606(l)(a) whether the holder of the note is suing the primary maker or the accommodation maker. Discharge under the circumstances still pertains and is a defense for Harmon against the bank. See also Rogers v. Merchants & Planters Bank, 302 Ark. 353, 789 S.W.2d 463 (1990).
This case, however, is distinguishable from Maestri and Rogers in one important respect. Here the Russellville bank assigned the note to the accommodator, Mobley, who became holder of the note. Ordinarily a holder takes a note assignment subject to all defenses which the maker had against the bank. See Ark. Code Ann. § 4-3-306 (1987); Richardson v. Girner, 282 Ark. 302, 668 S.W.2d 523 (1984). But the Code specifically gives an accommodation maker an independent cause of action against the party accommodated, as already shown in this opinion. See Ark. Code Ann. § 4-3-415(5) (1987). Mobley therefore is not suing Harmon merely in his status as note holder, but is suing him under the authority of a separate Code provision which empowers him to do so. Because of this independent status under section 4-3-415(5), Mobley’s right of recourse is unencumbered by any defenses Harmon held against the bank.
The policy behind this result is certainly sound and is best illustrated in the following commentary:
It also follows from the nature of the surety’s undertaking that he is entitled to recover from the debtor any payment he is called on to make to the creditor. If a friend agrees to sign another’s note and is ultimately made to pay that note to the creditor, curbstone equity tells us that he should have a cause of action against the person who actually benefited from the creditor’s loan.
James J. White and Robert S. Summers, Handbook of the Law Under the Uniform Commercial Code, 2d Ed., § 13-16, p. 529 (1980).
In light of this reasoning we cannot agree with the trial court that Harmon’s liability was automatically discharged against all parties when the note was extended without his consent. As already noted the discharge was a defense available to Harmon against the bank, and we have held in Maestri and Rogers that the defense is available to any nonconsenting party. But it was not a defense available against an accommodation party who is suing the party accommodated.
We reverse and remand the case to circuit court for judgment in favor of Mobley in accordance with this decision.
Reversed and remanded.
Dudley, Jr., not participating. | [
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Steele Hays, Justice.
The sole issue on appeal is whether the trial court abused its discretion in awarding an attorney’s fee, under Ark. Code Ann. § 16-22-308 (Supp. 1989), of only $25,000.00 in a civil action involving breach of contract.
On October 4,1985, the appellant, Lowell Chrisco, executed a sales agency agreement with the appellee, Sun Industries, Inc. (Sun). On January 14, 1988, Sun notified Chrisco that it was cancelling the agreement.
Chrisco filed suit on April 4, 1988, in the Circuit Court of Craighead County alleging that the termination was without proper cause and seeking past and future compensation and attorney’s fees. Sun initially denied liability, but on November 10, 1988, it deposited $293,284.64 into the court registry as the amount of Chrisco’s lost commissions as of that date and offered to reinstate Chrisco.
A jury was impaneled on December 19, 1988, and, after opening statements, the case was partially settled: Sun agreed to pay Chrisco $625,000.00 and only the matter of attorney’s fees remained to be decided by the court.
After the jury was discharged, the trial court accepted oral statements from Chrisco’s counsel on their fee arrangements, hours, and expenses. The trial court then announced from the bench that it would award a fee of $25,000.00. No judgment was entered incorporating this award, and Chrisco filed a motion for the trial court to reconsider its award. A hearing was held on October 17,1989, and the trial court denied Chrisco’s motion and subsequently entered a judgment awarding a fee of $25,000.00 on November 15, 1989.
Chrisco appeals and asserts that the trial court abused its discretion in awarding an attorney’s fee of only $25,000.00.
Our general rule relating to attorney’s fees is well established and is that attorney’s fees are not allowed except when expressly provided for by statute. Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988).
Section 16-22-308 addresses attorney’s fees in certain civil actions and provides in pertinent part as follows:
In any civil action to recover on . . . breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
(Emphasis added.)
The word “may” is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. Dunn v. Dunn, 222 Ark. 85, 257 S.W.2d 283 (1953). We find, within the context in which the word “may” is employed in this case, that section 16-22-308 is permissive and discretional with the trial court.
Additionally, although there is no fixed formula in determining the computation of attorney’s fees, the courts should be guided by recognized factors in making their decision, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the amount involved in the case and the results obtained, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, whether the fee is fixed or contingent, the time limitations imposed upon the client or by the circumstances, and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. State Farm Fire & Casualty Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988); Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984); New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980).
We have also previously noted that due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Accordingly, an award of attorney’s fees will not be set aside absent an abuse of discretion by the trial court. State Farm Fire & Casualty Co. v. Stockton, supra.
In this case, the underlying breach of contract issue was relatively simple in nature, and Sun ultimately admitted liability before the trial began; the case was settled after opening statements; the settlement included matters not before the trial court; Chrisco’s lead attorney, Mr. Gail Matthews, stated that he had spent 200 to 300 hours on the case and his hourly rate was $90.00; Chrisco had a one-third contingency contract with Mr. Matthews, who received $208,333.33 of the settlement as attorney’s fees; Mr. Matthews stated that any court award would go to Chrisco as augmentation of his recovery; Mr. Matthews’s association of counsel, whose fee of $37,581.80 was paid from Matthews’s contractual arrangement with Chrisco, was an independent decision; and defense counsel stated that his hourly rate was $100.00 per hour, and his fee would not be in excess of $30,000.00.
Appellant argues with considerable force that the trial judge conceded that his original fee allowance was inadequate, but that because appellee had relied on it it would be wrong to change the award. Certainly his remarks can be so construed, but we also note that he professed to remember the case quite well and felt “fairly comfortable” with the amount of the fee at the time it was set.
In spite of his equivocal remarks, we are persuaded the trial court considered the pertinent facts in arriving at its award of $25,000. Notwithstanding the reservations later expressed, we find under the circumstances the trial court did not abuse its discretion in fixing the award.
Affirmed. | [
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David Newbern, Justice.
The appellant, Ray Harrison Jones, was convicted of delivery of cocaine, possession of marijuana with intent to deliver, and possession of cocaine with intent to deliver. He challenges his conviction on the ground that the trial court erroneously refused to grant a motion in limine which would have prohibited the state from introducing in evidence a paper bag containing controlled substances. He also contends the court erred in failing to suppress that evidence. We find no error and affirm.
Officer Moore worked undercover. He drove his car to a place where he was approached by a man named Frazier who inquired if he could do anything for Moore. Moore said he wanted a “quarter rock” of cocaine. Frazier said he did not have it but could take Moore to a place where it could be obtained. Frazier got in Moore’s unmarked car, and they drove to a place where Jones was sitting on a trash dumpster.
Moore tried to give Frazier money to use in the drug transaction, but Frazier said he wanted to use his own. Frazier approached Jones. Moore observed Jones handing Frazier a white paper. Frazier came back to the car and said he wanted half of the powder in the paper and Moore could have the other half. Frazier unfolded the paper and divided the powder which was later found to be cocaine. Moore paid Frazier who then got out of the car.
Moore was equipped with a body microphone. As he was driving away from the scene, he described Jones to other officers who were in vehicles nearby. The other officers drove to the scene and arrested Jones. They searched him and found on his person a $20 bill and three white folded papers containing white powder which was also later found to be cocaine. Moore returned to the scene and identified Jones as the person from whom Frazier had gotten the powder he sold to Moore.
Approximately two feet from the place where Jones had been sitting, officers found a paper bag containing 77 Baggies containing marijuana and 54 white papers containing cocaine. Counsel for Jones asserted by motion in limine and motion to suppress that the paper bag and its contents should not be admitted because, in the event a verdict were directed with respect to the allegation that Jones possessed it, its presence in evidence would prejudice the jury in deciding whether Jones possessed the items allegedly found on his person.
The motions were considered together in an omnibus hearing. The court declined to suppress the evidence and stated that the evidence to be presented by the state was sufficient to go to the jury on the question whether Jones possessed the paper bag and its contents. The court also stated that it would consider the issue again on a motion for directed verdict, but “most certainly there’s not enough here to — for me to grant a Motion in Limine.”
We agree with the trial court’s ruling. Although Jones cites cases dealing with the question of sufficiency of evidence of constructive possession, Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978); Carey v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), no case is cited which supports the contention that the evidence should have been suppressed, and we are aware of no such case.
Jones also contends the search of his person exceeded that which can be made in case of .a “Terry stop.” The search was not made pursuant to a temporary detention of the sort approved in Terry v. Ohio, 392 U.S. 1 (1968). It was a search made upon arrest to obtain evidence of the commission of the suspected offense, Ark. R. Crim. P. 12.1 .(d), and was thus not limited to a “weapons frisk.” The distinction is explained in United States v. Robinson, 414 U.S. 218 (1973).
Affirmed. | [
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Robert H. Dudley, Justice.
Appellant Tommy Bryant was convicted of the offenses of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. He was sentenced to a total of eighty (80) years in prison. We affirm the judgments of conviction. Since sufficiency of the evidence is not questioned, we need not recite the details of the crimes.
Appellant first contends that the trial court erred in refusing to grant his motion for a continuance. The trial court correctly ruled that, after three and one-half years of continuances, the public interest required that appellant’s case be tried.
Appellant was arrested on December 6, 1986, and was immediately released on bond. Soon afterwards he employed John Henry, of Harrisburg, as counsel. On January 7, 1987, appellant, through counsel, moved for a continuance. It was granted. On April 6, 1987, appellant was granted a second continuance. On September 21, 1987, appellant asked for a mental examination. That motion was granted. On December 4, 1987, appellant moved for another continuance. It was granted. On February 8, 1988, he was granted another continuance. On July 11,1988, he was granted a continuance. On July 22,1988, he moved for another mental examination, and that motion was also granted. On September 22, 1988, another continuance was granted at appellant’s request. Appellant requested, and was granted even another continuance. On May 22, 1989, the appellant discharged his attorney and another continuance was granted. The trial court subsequently appointed Joe James, of Newport, as appellant’s counsel, but soon allowed Mr. James to withdraw because of a conflict of interest between appellant and another of James’s clients. The trial court then appointed Phillip Hout, of Newport, as attorney for appellant. On September 7, 1989, another continuance was granted. The trial court allowed Phillip Hout to withdraw because of differences and lack of communication with appellant. Henry Boyce, of Newport, was then appointed to represent appellant. On February 17, and March 16,1990, additional continuances were granted on appellant’s motions. The trial court set June 4,1990, as the trial date.
On two occasions in the month before the scheduled trial, Mr. Boyce tried to talk to the appellant about his defense, but the appellant refused to talk to him. Boyce gave appellant a copy of his file. On the morning of trial the appellant again refused to talk to Boyce. At that point the trial court told the appellant that the trial was going to start that morning regardless of whether he talked to his attorney. The trial court asked the appellant if he wanted a short recess in order to talk to his attorney. The appellant again apparently refused to talk to his attorney and, instead, requested a continuance in order to hire an attorney. The judge asked where he would get the money, and appellant responded he would borrow it from his family. The trial court refused the motion, and the trial commenced. Appellant contends the trial court’s ruling denying another continuance was reversible error.
On numerous occasions we have pointed out that the right to employ counsel of one’s choosing is not a license to subvert or manipulate or obstruct the effective administration of justice. See, e.g., Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). On one occasion we said an accused may not play a “cat and mouse game with the court” in choosing a new lawyer on the eve of a trial. Tyler v. State, 265 Ark. 822, 828-9, 581 S.W.2d 328, 331 (1979). Clearly, that is what appellant was seeking to do. The trial court correctly ruled that, after three and one-half years, it was time for a trial.
The appellant also argues that the trial court did not give counsel adequate time to prepare his defense since the trial court only allowed him a few minutes visitation on the morning of the trial. If counsel was unable to prepare for trial effectively, it was not counsel’s fault, but instead, was wholly the fault of appellant. Not every restriction on counsel’s time to consult with his client violates an accused’s sixth amendment right to counsel. Morris v. Slappy, 461 U.S. 1 (1983). Trial judges are responsible for assembling the accused, the lawyers, the jurors, the witnesses, and the court personnel at the same place and same time for the trial, and, once this process is set in motion, continuances should be granted only for compelling reasons. See Ungar v. Sarafite, 376 U.S. 575 (1964). An accused’s persistent, senseless, and contumacious refusal to assist his attorney in the preparation of his own defense is not a compelling reason for a continuance at the moment of trial. Morris v. Slappy, supra. Accordingly, the trial court did not err in refusing to give more than a few minutes delay in beginning the case.
Appellant’s final point of appeal concerns voir dire. The facts leading to the point are as follows. The State filed a motion stating that, in its case-in-chief, it would seek to show evidence of other deliveries of drugs in order to prove intent to deliver in this case. See Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987) and Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985). The State additionally submitted a proposed cautionary instruction. Subsequently, during voir dire, the following took place:
Mr. Stallcup [Prosecuting Attorney]:
Because of this problem in this type of case in proving intent, the law is going to allow me to show in a limited extent the defendant’s past history. And I’m going to put on proof that this defendant has two prior felony convictions.
BY MR. BOYCE: Objection, Your Honor.
BY THE COURT. Overruled.
That this defendant has two prior felony convictions for delivery of a controlled substance. And that evidence is going to be offered not to prejudice you against the defendant, but to show what his intent was on the date in question as a circumstance for you to consider. But I’m sure y’all understand that, you know, when I, after I put on that kind of proof that I still have the burden of proof to prove this case beyond a reasonable doubt and that the two prior felony convictions for delivery for this defendant are just so you can infer his intent on the date in question. Everybody follow that pretty well?
The appellant now appeals the ruling.
A.R.E. Rule 103(a)(1) requires that a timely objection appear of record, stating the specific ground of the objection if the specific ground is not apparent from its context. Here, a specific ground was not stated, and none is apparent from the context of the question, so we treat the objection as going to relevance and the general purposes of voir dire.
The purpose of voir dire examination is (1) to discover if there is any basis for challenge for cause, and (2) to gain knowledge for the intelligent exercise of peremptory challenges. A.R.Cr.P. Rule 32.2. The extent and scope of voir dire is generally within the sound discretion of the trial court. Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). Unless the trial court clearly abused its discretion, in allowing voir dire, we will not reverse. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Here, there was no argument that the question was a mere subterfuge to prejudice the jury, or that it was not asked in good faith. The question was not outside the scope of relevant voir dire, and accordingly, we will not reverse.
In this Court, appellant argues that the question should not have been allowed under a Rule 403 type of weighing. That argument was not made to the trial court, and we will not consider it for the first time on appeal.
Affirmed. | [
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George Rose Smith, Justice.
In I960, the appellee’s father, E. M. Regenold, lent $17,892.23 to the principal appellant, American Insurers Life Insurance Company, to enable that company to avert the foreclosure of a mortgage upon 4,495 acres of farm land owned by American Insurers in Mississippi. The elder Regenold gratuitously assigned the contract to his son, who brought this suit to enforce a provision in the contract by which the lender was to receive, in addition to interest at the rate of 6% per annum, one-half of the net proceeds accruing from the ultimate sale of the Mississippi lands. The defendants, American Insurers and several of its officers, attacked the validity of the provision in question on the ground that it made the loan agreement usurious. The chancellor rejected that defense and awarded the plaintiff a judgment for $110,538.96, with interest bringing the total to $127,-702.47. The pivotal issue here is that of usury.
Except for a dispute about the value of the Mississippi lands when the contract was made, there is hardly any real conflict in the testimony. From a record of almost 2,000 pages we winnow the pertinent facts.
Noble Grill organized American Insurers Life Insurance Company in 1958 and was-Q.riginally the sole contributor of its capital assets. At Grill’s death in 1960 the company was insolvent, at least in the sense of being unable to meet its current obligations. A foreclosure proceeding was pending against the Mississippi land — the corporation’s principal asset. The comparatively small sum of $17,892.23 was needed to pay delinquent items then due upon mortgage indebtednesses totaling $262,519.89.
It is fairly inferable that Grill, as president of the company, had not kept his fellow officers and directors fully informed about the Mississippi foreclosure suit. We may suppose that Gill had some plan for averting the foreclosure, but his death leaves that matter in a state of uncertainty.
Gill died on June 12, 1960. One of the appellants, Walter H. Patton, was elected to succeed him as president of the company. A few days later Patton and another director, J. E. Stevenson, Jr., were both in, Mississippi. Stevenson, Gill’s brother-in-law, was an Arkansas real estate dealer with whom the lands had been listed for sale at an asking price of $350,000. He testified that it was not until June 23 that he learned that a public foreclosure sale was scheduled to take place on June 25. He and Patton began desperate efforts to find some last-minute means of averting the sale.
The two men telephoned E. M. Regenold, a close friend who was president of a bank in Blytheville, Arkansas. After much discussion Regenold agreed to lend American Insurers the needed $17,892.23, with the debt to be evidenced by a promissory note bearing interest at 6% per annum. As security for the note American Insurers agreed (a) to assign to Regenold the net proceeds of an insurance policy on Gill’s life, (b) to assign to Regenold the rents from part of the Mississippi lands, (c) to give Regenold a note for $10,000, to be executed by Stevenson, and (d) to give Regenold a “commission” of half the net proceeds of the sale of the Mississippi land, after the payment of the mortgage indebtedness and expenses of sale. On the basis of the telephone conversations Regenold sent a cashier’s check to Patton and Stevenson, which reached them only minutes before the foreclosure sale would have been held. Regenold’s attorney promptly drafted a resolution embodying the terms of the loan contract, which the directors of American Insurers adopted on June 30. The corporation also executed its note for $17,-892.23, which was actually paid within a few months from the Mississippi rents. In 1963 American Insurers, which was then in liquidation, sold the Mississippi lands for $567,131.25. After the payment of the debts against the land and of the sum of $133,804.38 as a compromise settlement with tenants who had an option to purchase the land themselves, there remained the net proceeds of sale upon which the chancellor based his decree in favor of the appellee.
At the outset we disallow the appellee’s contention that the transaction was a “joint venture” rather than a simple loan of money. We find no resemblance between the contract, as described by Regenold’s own attorney, and a joint venture or partnership agreement. Regenold took no risk in the sense of advancing money that might be lost if the supposed venture proved a failure. Regenold simply lent the sum of $17,892.23 upon security so sound that the principal debt was actually repaid before December 1, 1960. Both Patton’s contemporaneous letter to Regenold, outlining the terms of the contract, and the corporate resolution prepared by Regenold’s lawyer, referred to the advance of funds as a loan. It is true that Patton’s letter described Rege-nold’s share of the net proceeds of sale as a “commission,” and that the corporate resolution recited that the payment was to be made “in consideration of services rendered and assistance given to this corporation by the said P. M. Regenold in connection with the sale of certain lands owned by this corporation” in Mis sissippi. There is no contention whatever by the ap-pellee that his father was entitled’ to a commission for helping to sell the Mississippi property, because E. M. Regenold was not a licensed real estate broker either in Arkansas or in Mississippi and hence could not legally have contracted for a broker’s commission in either state. The undisputed truth is that Regenold’s sole contribution to the transaction was a loan of money, leaving no sound basis for the argument that some sort of joint venture existed.
We come, then, to the pivotal issue of usury. Contracts by which the lender acquires a right to a speculative profit in place of or in addition to a fixed rate of interest ordinarily present an issue of fact on the question of usury. Needless to say, if the lender bargains for the possibility of a profit in addition to the highest permissible rate of interest, the transaction is usurious. Sosebee v. Boswell, 242 Ark. 396, 414 S. W. 2d 380 (1967). At the other extreme, there is ordinarily no basis for a finding of usury when the one who advances the money takes the risk of losing both principal and interest if the venture fails. See Williston, Contracts, § 1692 (Rev. Ed. 1938); Andrews v. Andrews, 170 Minn. 175, 212 N. W. 408, 51 A. L. R. 542 (1927).
With respect to the particular fact situation now before us, which falls between the two extremes just mentioned, we approve — with special emphasis on the final sentence — the following paragraph from the Restatement of Contracts, § 527 (1932):
“Usury laws do not forbid the taking of business chances in the employment of money. A creditor who takes the chance of losing all or part of the sum to which he would be entitled if he bargained for the return of his money with the highest permissible rate of interest is allowed to contract for greater profit. On the other hand it is not permissible to use this form of contract as a device for obtaining usurious profit. If the prob ability of the occurrence of the contingency on which diminished payment is promised is remote, or if the diminution should the contingency occur is slight as compared with the possible profit to be obtained if the contingency does not occur, the transaction is presumably usurious.”
Regenold exacted from the debtor a contract by which both the principal and interest of the loan were amply secured. At most Regenold gave up the difference between interest at 6% upon a note due in six months and interest at 10% upon the same note — a sum amounting to about $350. (Under Mississippi law the maximum interest rate would have been 8%, but the appellee does not argue that the result under the Mississippi decisions would be more favorable to him than that under Arkansas law.) By contrast, Regenold’s probable profit would be so decidedly disproportionate to the pittance he gave up as to bring the case within the Restatement’s declaration that the contract is “presumably usurious.”
We do not agree with the appellee’s insistence that there is “no evidence of any kind” as to the market value of the Mississippi lands on June 25,1960 — the date of the oral agreement. To the contrary there is an abundance of proof indicating that Regenold’s expected profit would far exceed the trivial additional interest he might lawfully have demanded. The total mortgage debt against the lands was $262,519.89. Stevenson, who had the lands listed for sale at $350,000, unquestionably assured Regenold that the profit clause in the agreement would result in a substantial return. Before the loan was paid in November, Patton sent Regenold a statement (appearing as Exhibit 32) in which he estimated the debtor’s equity to be $100,000. Within less than 65 days after the loan was made American Insurers rejected an offer of $325,000 for the property. Regenold was apparently anxious for the company to accept that offer and expressed his willingness to advance an additional $53,-.000 to consummate the transaction. In December of 1960 the tenants on the land were given an option to purchase it for $350,000. Finally, less than three years after Regenold made the loan the land was actually sold for $567,131.25. On the proof as a whole we are forced to conclude that Regenold, while taking no substantial risk of losing either the principal or the interest of the loan, demanded in addition a reasonably certain profit so completely in excess of legal interest as to constitute usury. The chancellor was in error in not so holding.
Reversed.
FoglemaN, J., disqualified. | [
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Conley Byrd, Justice.
This is an eminent domain proceeding. Appellant, Housing Authority of the City of Little Rock, Arkansas, contends that the $161,000 award in favor of appellees Lawrence Fisher and Faye Fisher is excessive, and that the trial court erred in awarding interest on the amount in excess of the $101,081.26 deposit during the period appellees were entitled to collect rent on the property.
This action was initiated in circuit court on November 9, 1965. Upon deposit in the registry of the court of $101,081.26 as estimated just compensation, the Housing Authority was vested with fee simple title and immediate right of entry. Appellees, together with Black & White Oab Company, immediately filed motions contesting the Housing Authority’s right to take the property and requesting that the matter be transferred to equity. After the transfer to equity, the parties compromised the issue concerning the Housing Authority’s right to condemn the property by an order entered August 3, 1966, which provided:
“1. The defendants, Lawrence Fisher and Faye Fisher, are entitled to withdraw said total sum of $101,-081.26 without prejudice to their rights to have the amount of compensation to be paid by plaintiff to them for the acquisition of said parcel of real estate to be determined by the Court herein;
“2. The plaintiff has the right to acquire said parcel of real estate for the reasons and purposes set out in the plaintiff’s Complaint herein;
“3. By reason of the fact that the defendants contested the right of the plaintiff to take the above described parcel, the plaintiff did not become entitled to collect any rents becoming due from said parcel until June 1, 1966, and defendants, Lawrence Fisher and Faye Fisher, are entitled to receive all rents which accrued prior to June 1, 1966;
“4. The defendant, Black & White Cab Company, shall pay the plaintiff rent at the rate of $500.00 per month begining June 1, 1966, and ending when said defendant vacates said parcel, and said defendant shall vacate said parcel on or before November 1, 1967, unless plaintiff shall, in writing, extend the time within which said defendant shall occupy said parcel.”
The property in question is located at 114 East Markham in Block 1 of the original City of Little Rock. It is 55½ feet wide from east to west and 140 feet deep from north to south. It fronts on both Bridge and Markham Streets. The Black & White Cab Company advertising on the two-story building on the property is visible from a number of downtown businesss such as hotels, bus stations and professional office buildings.
With respect to the value of the property, appellee Lawrence Fisher testified that in his opinion the highest and best use of the property was- for the taxicab business, and that it was worth $200,000. Mr. Louis Cohen and Mr. Byron Morse were called as expert witnesses for appellees. Mr. Cohen testified that in his opinion the fair market value of the property was $166,000, based on both a comparable sales approach and an income approach. Mr. Byron Morse testified that he had considered both the comparable sales and the income approaches, but that he did not give particular weight to the comparable sales approach because of the difficulty in finding sales of comparable properties. Mr. Morse stated that the main thing he dwelt upon was the income approach, and that in his opinion the property would probably sell for $161,000. .
The Housing Authority called as its expert witnesses Mr. William A. Payne, who testified that the market value, based on the comparable sales approach, was $83,000; and Mr. James H. Larrison, who testified that the market value, based on the comparable sales approach, was $84,000.
All the expert witnesses are admittedly competent real estate operators. The testimony of every witness was to somfe extent discredited by expert testimony for the other side. The Housing Authority here intimates that a sale of property in Block 2 made by Ed I. McKinley and wife to appellees on April 1, 1965, for $55,000, is indicative of the market value of property in the area for comparable sales purposes. Of course, we can not accept this, because the record shows that the witnesses considered many sales and that some of them did not believe this sale a true arm’s length transaction. Even if it were an arm’s length transaction, it is still permissible for witnesses to consider it a bargain instead of representing the market price.
Little cross-examination was made of appellees’ witness, Mr. Byron Morse. To attack the credibility of Mr. Morse’s testimony here, the Housing Authority contends that the $1,000-a-month lease arrangement between Black & White Cab Company and the Fishers was not a bona fide transaction and that it was not representative of the rental value of the property. To substantiate its position, it points out that its witnesses estimate the rental value to be from $600 to $700 per month and that it was renting the property to the Black & White Cab Company at the time of trial for $500 per month. We find nothing in the record to show that the rental agreement between appellees and Black & White Cab Company was not an arm’s length transaction. Nor can we assume that the $500-a-month arrangement between Black & White Cab Company and the Housing Authority is any more an indication of its fair rental value than the $1,000 paid to the Fishers.
Consequently, we are unable to say that the trial court’s finding of a fair market value of $161,000 is contrary to a preponderance of the evidence.
We agree with the Housing Authority that under the record appellees are not entitled to interest on the excess judgment over the deposit during the time that they were entitled to collect rent from the property. See Arkansas State Highway Comm’n v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S. W. 2d 173 (1959). Consequently, the judgment is modified to allow interest at the rate of 6% on the excess judgment from June 1, 1966.
The judgment is affirmed as modified.
Brown and Jones, JJ., dissent. | [
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CarletoN Harris, Chief Justice.
This is a Workmen’s Compensation case. Leon Parnell, appellee herein, was injured on October 4, 1963, while driving a tractor on that date. He was a regular employee of Carey Brothers, this concern being engaged in farming operations. Howe Lumber Company, appellant herein, and hereinafter at times referred to as Howe, operated, inter alia, rice farms, and this company had entered into a contract with Carey Brothers whereby the latter was to combine the rice and haul it to the granary, using Carey Brothers’ combines and trucks. Carey was to be paid at the rate of $.18 per bushel of rice delivered to the granary. Under the agreement, Howe furnished a tractor, a rice buggy and a driver to haul the rice from the combine to the truck in order to expedite the unloading of the combine. Earl ‘Hampton, an employee of Howe, who had regularly driven the tractor and rice buggy, did not report for work on the above date, and Mr. Walter Carey directed Parnell to drive the tractor and buggy. B. S. Sullivan, farm manager for Howe, offered to give Carey some rice thrashed by an experimental combine that day. Parnell, after being injured, contended that, although regularly employed by Carey Brothers, he was, on October 4, 1963, an employee of Howe, and entitled to Workmen’s Compensation Benefits as a result of the accidental injuries arising oxit of and in the course of the employment. The claim was heard before a referee, who found that Howe did not employ Parnell,- that it exercised no control over him nor his activities in any respect, did not pay him, and did not even know that this particular employee was working. The claim was accordingly denied, and the full commission affirmed this finding on appeal, holding that Parnell was acting within the scope of his employment as an employee of Carey Brothers, but not as an employee of Howe Lumber Company. The Circuit Court of Phillips County reversed,' finding that Howe agreed that Parnell could drive the tractor, and, though not paying appellee, had planned to give some additional compensation to Carey Brothers, consisting of the rice which was thrashed by the experimental combine. The court held that Parnell was a “special employee,” and entered its judgment to that effect. From such judgment, appellant brings this appeal.
Appellee testified' that, on the day of the accident, he went to work that morning for Mr. Walt Carey; that he had been driving a bob truck for Carey for about two weeks, hauling rice to the granary. On the day in question, the Howe employee who normally drove the grain buggy did not show up, and Mr. Carey asked ap-pellee to drive the buggy. Parnell complied, and was injured while so engaged:
“I was coming from unloading coming back and on the way I was coming across the rice field there and a levee had been cut level where I couldn’t see it — when I was coming along there I got right at it I looked and I didn’t see it — I hit it — I went up and come back down and hit me behind the seat went off the grain buggy.”
Parnell received a ureteral stricture, a permanent injury, which will require a dilatation at least once a month.
Parnell testified that he did not have any conversation with anyone connected with Howe Brothers, and did not overhear any conversation between Carey and any Howe employee. He never did receive any pay from Howe, and was still an employee of Carey. He received the same rate of pay (from Carey) that he had been receiving from this employer prior to October 4. He said that Carey’s insurance company paid his doctor and hospital bills, and that Mr. Charles Carey continued to pay him $33.00 a week while he was incapacitated, and before he returned to work.
Mr. Walt Carey testified that the Howe driver for the buggy did not show up on October 4, and he (Carey) told Sullivan that he had a boy who could drive the buggy, and he asked Sullivan if that would be all right. Sullivan answered in the affirmative, and said “that he would put some rice from the experimental combines— he said he would put a little rice from them in our trucks for us * * * to kindly compensate for us furnishing the driver .of that tractor.” Mr. Carey stated that he was the one who told appellee to drive the tractor, and that Parnell, after being dismissed from the hospital, had been employed by either the witness or his brother (Charles Carey).
.B. S. Sullivan,' farm manager and employee of Howe for 31 years, testified that Mr. Walt Carey directed Parnell to do t]re driving in question, and that he (Sullivan) had no conversation with Parnell at all, and, in fact, he would not know appellee if he saw him. He paid nothing to Parnell.- According to the witness:
“ * * * We didn’t have a clriver and Walt said I have got a boy I could put on it and when he did I told him that was all right with me because it was to their advantage the more rice they got on that truck and got ' it to Wabash the more money they made and they put this boy — I never did ask him his name or anything and I said well I have got an experimental combine over there cutting there will be a little bit on the hopper there might be 50 bushel and, there might be 80 bushel I said when the day is over when they get through — • they were running tests when they get through they will dump it on your truck because you are paying that boy to do something for me* *
The general principles relative to the question before us are set forth in Larson’s Workmen’s Compensation Law (1966), Section 48, Page 710:
“When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) The employee has made a contract of hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work.’’
Further, in Section 48..1Ó:
“Although the lent-servant doctrine is a familiar one at common law, and has produced some of the most one at common law, and has produced some of the most venerated and most intricate cases in the law of master and servant, it is necessary to stress once more that the workmen’s compensation lent-employee problem is different in one significant respect: there can he no compensation liability in the absence of a contract of hire between the employee and the borrowing employer. For vicarious liability purposes, the spotlight was entirely on the two employers — what they agreed, how they ■ divided control, how they shared payment, and whose work, as between themselves, was being done. No one paid much attention to the employee or cared whether he had consented to the transfer of his allegiance, since, after all, his rights were not usually as a practical matter involved in the suit. In compensation law, the spotlight must now be turned upon the employee, for the first question of all is: did he make a contract of hire with the special employer? If this question cannot be answered ‘yes,’ the investigation is closed, and there is no need to go on into tests of relative control and the like.”
We are here only concerned with whether there was substantial evidence to support the ruling of the commission. It is apparent that ample proof was offered to support the ruling. In the first place, it is undisputed that no contract of hire was entered into between Howe and Parnell. In fact, Parnell himself testified that he never talked with anybody connected with appellant on the day of the accident, and he drove the Howe tractor because of directions from Mr. Walt Carey. There is also evidence that the work done was essentially for the benefit of Carey Brothers since the combines did not have to be moved to a place where the rice could be loaded on the trucks for delivery to the driver; in other words, the combines could be used continuously in the field, which would enable more rice to be combined, and thus would enable Carey Brothers to receive more money. The matter of a benefit or service to the regular employer was commented upon in our case of Transport Company of Texas v. Arkansas Fuel Oil Company, 210 Ark. 862, 198 S. W. 2d 175, There, the question was whether one Powell was an “‘emergency employee” of the appellant. In reversing the decision of the trial court, which had held that Powell was an emergency employee, this court pointed out that PowJ.1 evidently was endeavoring to render a service to his own regular employer when the accident occurred. We said:
“In such cases the general rule seems to be that, where the person rendering assistance to another in an emergency has an interest for his employer in relieving the emergency condition, he does not become an emergency employee of the person to whom he renders such assistance.”
It would also appear, from the testimony of the parties, highly doubtful that Howe would have had the right to control the details of the work (which appellant never attempted to do).
Appellee relies principally upon the fact that the extra grain was given to Carey as a matter of; according to appellant, compensating Carey for furnishing the driver for the Howe tractor and buggy; also, the additional fact -that Sullivan knew that Parnell was driving the Howe tractor, and gave his consent for that to be done. There is no point in further discussing these particular facts, since we are not holding that as a matter of law, appellee was precluded from recovery. As stated previously, we are only concerned with whether there was substantial evidence to support the findings of the commission. We think it is evident, from what has been said, that such proof was presented.
Accordingly, the judgment of the Phillips County Circuit Court is reversed, and the cause is remanded, with directions to that court to reinstate the order entered by the commission. | [
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J. Fred Jones, Justice.
Appellant was sued for debt on open account in the Sebastian County Circuit Court by complaint filed on March 28, 1966, and summons was issued and served on the same date. On April 15, 1966, appellant filed a motion in abatement of the complaint to quash summons and set aside service thereof for the reason that the summons was not issued, served, or returned according to law and is wholly insufficient as a writ of process, and therefore no action had been commenced against the appellant. This motion is designated:
“SPECIAL APPEARANCE OF DEFENDANT MOTION TO ABATE COMPLAINT; TO QUASH SUMMONS AND SET ASIDE PURPORTED SERVICE THEREOF.”
Appellant appeared specially for the purpose of this motion and on May 4, 1966, the motion was overruled and appellant was given ten days to plead further.
Instead of pleading further as authorized and directed by the trial court, the appellant, on May 12, 1966, filed another motion almost identical to the one that had been overruled by the court only eight days before. This second motion is designated:
“SPECIAL APPEARANCE OF DEFENDANT MOTION TO VACATE ORDER OVERRULING DEFENDANT’S MOTION TO ABATE COMPLAINT; TO QUASH SUMMONS AND SET ASIDE PURPORTED SERVICE THEREOF.”
On February 8, 1967, answers to request for admissions were filed by the appellees, but no further pleading was filed by the appellant subsequent to his motion which was overruled, and his motion to vacate the order overruling the motion.
On February 13, 1967, appellant was advised by letter from the trial judge that the motion to vacate the order overruling the motion to abate and quash, was also then being overruled.
The appellant made no effort to plead further and on March 8, 1967, default judgment was rendered against him and a nune pro tunc order was also entered overruling the motion to vacate the order overruling the motion to abate complaint and quash summons.
On April 4, 1967, appellant filed a motion to vacate the default judgment for the reason that “no factual or statutory basis exists to support same and no default exists,” and to “vacate the nunc pro tunc order filed March 13, 1967, for the reason that order was not handled in manner prescribed by ‘Rules for the Twelfth Judicial Circuit.’ ”
This motion was also overruled on April 11, 1967, and on his appeal to this court the appellant designates the following points for reversal:
“1. That the trial court erred in not granting appellant’s ‘motion to abate complaint; to quash summons and set aside purported service thereof;’ and in turn for not granting appellant’s ‘motion to vacate order overruling defendant’s motion to abate complaint; to quash summons and set aside purported service thereof.’
“2. That the trial court erred in granting default judgment, and in turn, for not granting appellant’s ‘motion to vacate default judgment entered on March 8, 1967, and nunc pro tunc order filed March 13, 1967.’”
Ark. Stat. Ann. § 27-301 (Repl. 1962) provides as follows :
“A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties.”
This provision simply means what it says. See (Burks v. Sims, 230 Ark. 170, 321 S. W. 2d 767).
Ark. Stat. Ann. § 27-1101 (Repl. 1962) is as follows:
“The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses.”
Ark. Stat. Ann. § 27-1103 (Repl. 1962) is as follows :
“The only pleadings allowed are:
First. The complaint by the plaintiff.
Second. The demurrer, or answer, by the defendant.
Third. The demurrer, or reply, by the plaintiff.”
When appellant’s motion was overruled and he was given ten days in which to plead further, he was obligated to plead further within the ten days or risk the consequences of judgment on the complaint.
We conclude that “ pleading further” simply means (as defined in Ark. Stat. Ann. § 27-1101, supra), and (as allowed in Ark. Stat. Ann. § 27-1103, supra) in addition to what has already been filed, and we hold that when a “motion to abate complaint; to quash summons and set aside purported service thereof” has been overruled and additional time is given in which to plead further, an additional motion to vacate the order overruling the original motion and restating the original motion, is not a further plea as defined and allowed by statute and within the meaning of the phrase “plead further.”
Circuit courts are designed for the serious business of settling disputes between individuals, and circuit judges are vested with considerable discretion in promulgating and enforcing court rules for the orderly conduct of the courts’ business.
As we are unable to say that the trial court erred on either of the points raised by the appellant, the judgment of the trial court is affirmed.
Affirmed. | [
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Paul, Ward, Justice.
This appeal calls for a determination of the force and effect of a municipal Resolution invoking certain provisions of the Housing Authorities Act. Set out below is a summary of the pertinent background facts which are not in dispute.
On March 31, 1966, the Commissioners of Eureka Springs adopted Resolution No., 94 declaring the need for a Housing Authority in the City. On May 18, 1967 the City published the Resolution in a local newspaper. On June 15, 1967 a petition, signed by the required number of electors, calling for a referendum on the Resolution was presented to the clerk. The City clerk refused to file the petition on the ground that it was not timely filed as required by Amendment 7 of the Arkansas Constitution — i.s&. “within thirty days after the passage of such a measure by a municipal council.” On August 7, 1967 the petitioners (by proper pleadings) asked the Circuit Court to compel the City Commissioners to call an election. The Circuit Court held that Resolution 94 was general and permanent in nature, that it should be considered as an “Ordinance” which required publication before final enactment, and that an election must be called. The City now prosecutes this appeal.
For a reversal the City (appellant) relies on only one point:
‘ ‘ The only issue on appeal is one of law, i. e. whether or not Resolution 94 as passed by the City Com missioners of Eureka Springs, Arkansas, was a Resolution, or, in fact, an Ordinance?”
For reasons hereafter stated, it is our conclusion that the' holding of the trial court must be affirmed.
Among other things Amendment No. 7 provides:
“Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. ”
# #
“Fifteen percent of the legal voters of any municipality . . . may order the referendum . . . upon any local measures.” (Emph. supplied.)
# # *
“In municipalities . . . the time for filing an initiative petition shall be fixed . . . for a referendum petition at not less than thirty days ... of the passage of such measure . . . .” (Emph. supplied.)
“The word ‘Measure’ as used herein includes . . . resolution ... or enactment of any character.” (Emph. supplied.)
Ark. Stat. Ann. § 19-2404 (Repl. 1956) — being § 1, Act 36 of 1949 — in parts pertinent here, reads:
“. . . all by-laws or ordinances of a general or permanent nature . . . shall be published in some newspaper of general circulation in the corporation.”
It is our opinion that Resolution. 94 was of both a general and a permanent nature. It is general in that it necessarily affected all the people of the City. It was certainly permanent in that it would be effective until repealed. In the case of City of El Dorado v. Citizen's Light and Power Company, 158 Ark. 550, 250 S. W. 882, this Court discussed ordinances of a “general or permanent nature” and made the following statement:
“Of cornee all ordinances enacted by city councils are not permanent in the sense that they cannot be repealed, but those which endure until repealed are deemed to he permanent . . . . ”
It is our judgment, in view of what.has been pointed out above that Resolution 94 was in fact an ordinance which had to he published and that the referendum petition in this case was timely filed.
Affirmed. | [
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Paul Ward, Justice.
This litigation concerns the dissolution [including annexation to two other districts] of County School District No. 1 of Carroll County (an appellee here). Appellee was created under Initiated Act No. 1 of 1948 which includes Ark. Stat. Ann. §§ 80-426 to 429 (Rep]. 1960) and is found in the Acts of 1949 at pages 1414 to 1416.
On July 1, 1966 the Carroll County Board of Education (appellant here) dissolved the appellee district and annexed approximately the west one-half of the land to the Berryville School District and the east portion to the Green Forest School District.
Appellee (along with residents of District No. 1) prosecuted an appeal to the circuit court, where testimony was introduced by both sides.
At the conclusion of the hearing the trial court set aside the Order made by the Board of Education, dissolved District No. 1, and gave approximately 15% of its territory to the Green Forest School District (described by metes and bounds) and the rest of its territory to the Berryville District. From the above decision and Order appellant prosecutes this appeal, seeking a reversal on two grounds, stated as follows:
(One) “The Board of Education of Carroll County has the authority to annex some or all portions of Carroll County School District No. 1 to another district or districts.
(Two) “The order of the Board of Education was made to more effectively and more efficiently serve the residents of the district; such Order cannot be altered unless it is shown by clear and convincing evidence that the Board acted in an arbitrary and discriminatory manner.”
One. Appellant,,under this point, argues that the trial court was in error in holding the Board had no authority to annex portions of District No. 1. What the trial court held was that the Board had no authority of Ark. Stat. Ann. § 80-426 et seq. However, the Board is given this authority under Ark. Stat. Ann. § 80-213 (b) (Repl. 1960), and any error (a point which we do here decide) the trial court may have made is harmless, and does not affect any issue raised on appeal.
Two. A careful reading of the record convinces us that the trial court was justified in setting aside the Order of the Board which divided District No. 1 in two equal parts. Such division strongly indicates the Board failed to make a careful study of the matter of convenience to the school children and their parents, and that it disregarded their expressed wishes, which were shown by petitions filed with the Board. Such petitions showed that 85% of the people in District No. 1 chose to join the Berryville District. Furthermore, it is significant, we think, that no one makes any objection to the division made by the trial court.
It is our conclusion, therefore, that the Order of the trial court should be, and it is hereby, affirmed.
Affirmed.
Fogleman, J., dissents. | [
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Paul Ward, Justice.
This is a Workmen’s Compensation case. This appeal by the employer, Pike County Poultry Co., challenges two specific findings of the Referee which, in turn, were upheld by the Commission and the circuit court. Some of the background facts are set out below.
Ann Kelley, appellee, was injured on August 11, 1965 while in the employment of appellant. Appellant, on November 29, 1965 made a payment of $371.80 to appellee to cover the healing period up to that date. Following this date appellee continued to see appellant’s doctor (Dr. Durham) until February 7, 1966 when the doctor discharged her, allowing 5% disability to the body as a whole for permanent partial disability. During all this time and for sometime thereafter ap-pellee was also treated by her own doctor (Dr. Haris- ton). In June, 1966 appellee complained, by letter, to tbe Commission for not having received further payments. Later appellee contacted her attorney who, on July 1, 1966, filed a claim with the Commission stating, among other things, appellee was not receiving payments for part of the healing period, and requesting a date be set for the purpose of determining all issues. The Commission then fixed July 27, 1966 for a hearing before the Referee.
A hearing was held, with all parties and their attorneys present, at which time testimony was heard and reports by the two doctors were filed. On August 29, 1966 the Referee made, in substance, the following findings :
(a) Appellee’s healing period ended February 7, 1966. (Not Nov. 29, 1965 as appellant contended.)
(b) Appellee “suffered a disability of 5% to the body as a whole, and that respondent controverted this finding”.
(c) The cost of medical services rendered by Dr. Hariston are not compensable.
(d) Respondent “controverted temporary total disability benefits from November 30, 1965 to February 7, 1966”.
(e) An Award was made accordingly, and appel-lee’s attorney was allowed a fee.
As previously stated, the above findings were appealed, to, and approved by, the Commission and the circuit court. Appellant appeals only from findings (a) and. (e), presented in that order.
One. Attorney Fee. It is our conclusion that this item was properly allowed. The pivotal issue in this connection is whether there is substantial evidence to show appellant controverted appellee’s claim in whole or in part, on which an award was made. The pertinent portion of Ark. Stat. Ann. § 81-1332 (Repl. 1960) reads:
“Whenever the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fees for legal services be paid by the employer or carrier in addition to compensation awarded . . .”
Applying the well established rule that we affirm the Commission on substantial evidence, and also on the rule (announced in Fagan Electric Company v. Green, 228 Ark. 477, 308 S. W. 2d 810) that we must weigh the testimony in its strongest light in favor of the Commission’s findings, we are unable to say the Commision erred in finding appellant did controvert part of ap-pellee’s claim. Appellee was justified in employing an attorney because appellant was not furnishng needed medical treatment and she had received no payment in thirty weeks and her time for action was running out.
Two. The Healing Period. Likewise, it is our opinion that the Referee was justified in finding the healing period ended on February 7, 1966 (as contended by appellee) and not on November 29, 1965 (as contended by appellant). Appellee testified in substance, that after November 29, 1965; she went to her doctor for treatment several times because she was suffering with her back; she was not able to work, and is not able to work now. Dr. Hariston, in a letter dated July 14, 1966 (in the Record) stated that appellee “still has trouble with her back and probably will until she is operated”. It is not denied that the above testimony (and more of the same purport) was controverted by appellant.
Under the liberal rules previously mentioned, we are unwilling to say there was no substantial evidence to support the findings of the Referee, the Commission and the circuit court.
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CabuetoN Harris, Chief Justice.
This appeal relates to the revocation of the license of S. W. Patrick to practice pharmacy in the state of Arkansas by the Arkansas State Board of Pharmacy. Patrick was charged with, and found guilty on, two counts of violating the pharmacy laws of Arkansas. After a hearing before the board, wherein evidence was taken, that body found that Patrick bad violated the pharmacy laws, and that such violations were sufficient to justify the revocation of his license to practice pharmacy in this state. An order of revocation was thereupon entered on February 16, 1966. Patrick appealed to the Union County Circuit Court. That court, upon review of the record made before the board, found that the decision was unsupported by material and substantial evidence, and reversed same. From this judgment of the Circuit Court, the State Board of Pharmacy brings this appeal.
Administrative procedures were complied with, and no objection has been raised by appellee as to any irregularity.
Ark. Stat. Ann. § 72-1040 (Supp. 1967) sets out the grounds for revocation of a pharmacist’s license, Item 8 of that section being the basis of the first charge against Mr. Patrick. That item provides for revocation or suspension when it is found “that said person has willfully violated any of the provisions of the pharmacy laws of the state of Arkansas. ’ ’ The law which it is contended was violated is found in Ark. Stat. Ann. 82-1115 as Subsection (k), this provision having been adapted from the Federal Food, Drug and Cosmetic Act, and containing essentially the same language (21 U.S.C. 353 [b] [1] [B]). In Dugan Drug Stores, Inc. v. United States, 326 F. 2d 835, it was held that the dispensing of a potentially harmful drug without authorization by a prescribing physician constitutes misbranding.
The facts relied upon by the board in entering its order are as follows:
Paul A. Bush, a special investigator for the board, had been given a package by Mr. Woodrow T. Little, Chief Inspector of the State Board of Pharmacy, the package (container) bearing a label, this label showing the name of Mrs. Nancy Henry, such name being fictitious.- The label indicated thát Dr. R. L. Turnbow, who had given permission for his name to be used, had pre scribed for Mrs. Henry, though, of course, this had not happened. This procedure was part of a general investigation, and Rush testified that he was to contact every store in the area.
On December 29, 1964, Rush walked into the Medic Pharmacy in El Dorado, where appellee was pharmacist, and handed to Patrick the container, which bore a "Walgreen label, the label indicating that it had contained tablets of Enovid, which had been dispensed (as set out in the preceding paragraph) to Mrs. Nancy Henry on the basis of a prescription by Dr. Turnbow. Enovid E is a legend drug, meaning that it requires a prescription . Rush told Patrick that he had been sent by a lady to get it refilled; appellee accepted the container from Rush, and sold him another container, containing 20 Enovid tablets, Patrick affixing a Medic Drug Store label No. 185622, indicating that the tablets had been dispensed on a prescription by Turnbow to Mrs. Henry. Someone in the drug department then wrote a prescription for Mrs. Henry for 20 tablets of Enovid E, signed Dr. Turnbow’s name to it, and appellee signed his name as dispensing pharmacist in compliance with the regulation of the board which requires a pharmacist who fills a prescription to attest that he has personally filled the prescription.
Appellee testified that he did not recall the transaction desiribed by Rush, though the prescription did bear his signature.
He said that Dr. Turnbow was a specialist in Obstetrics and Gynecology:
“* * * The date on this is September 14th. He came in in December then it was within his time limit. I don’t remember whether I actually filled it and if I did I probably tried to call Dr. Turnbow. If I don’t try to call them then on these situations we call them later and get their OK because Turnbow and Rainwater are particular about their prescriptions. They want to check them. I probably tried to call Turnbow and didn’t get him. As far as this incident concerning the prescription, I don’t recall. * *1 think a druggist is entitled to use his professional judgment to know that a pill of this sort or drug of this sort has to be taken regularly it wouldn’t be like making the patient run down to the doctor and get a proper prescription when it is explained to you what type of drug it is. There was no doubt as to what it was and knowing Dr. Turnbow and knowing that he gives them for a year at a time I wouldn’t hesitate to fill it.”
On February 2, 1965, Rush again went to the Medic Pharmacy, taking with him the container which had been given him in December by Patrick. This was presented to Mrs. Hughes, employed in the store at that time. According to Rush, Mrs. Hughes filled the prescription, typed the name on the label, placed the label on the package, and handed it to him. Appellee was in the drug store at the time, but there was no consultation between Mrs. Hughes and Patrick, and Rush stated that, as far as he knew, the act by Mrs. Hughes was performed without knowledge of appellee. However, the prescription was signed by Patrick, and was offered as an exhibit in the case. The aforementioned facts constitute basically the evidence upon which the board acted.
The Circuit Court found that “the evidence does not sustain the board’s finding that Mr. Patrick dispensed 20 tablets of Enovid E without a proper prescription therefor.
“However, the evidence also shows that he did this as a result of a ‘trap’ set by the very board which acted as judge at his hearing. The evidence shows that an employee of the Board was given a packet containing one Enovid tablet (which the evidence shows is primarily a ‘birth control’ pill) with another drugstore’s label on it and with a prescription number and a doctor’s name on it. This employee then took this packet to Mr. Patrick and asked for a refill. Of course, no prescription had been given for the pills in the first place and this was simply a ‘trap’ or ‘test’ to see if Mr. Patrick would refill what he was led to believe was a genuine prescription. ’ ’
The court was somewhat critical of this procedure, but it is, under the circumstances of this case, completely legal, and the practice is frequently followed in enforcing the law. In Sorrells v. United States, 287 U. S. 435, in an opinion by Chief Justice Hughes, the United States Supreme Court said:
“It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. [Citing cases.] The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law.”
Of course, evidence as to violations of the liquor and narcotic laws is frequently obtained by officers who are “undercover” men, and who employ deception in presenting an opportunity for those who may be engaging in illegal traffic. In Sherman v. United States, 356 U. S. 369, the court said:
“However, the fact that government agents ‘merely afford opportunities or facilities for the commission of the offense does not’ constitute entrapment. Entrapment occurs only when the criminal conduct was the ‘product of the creative activity’ of law enforcement officials. ’ ’
In Dugan Drug Stores, Inc. v. United States, supra. the United States Court of Appeals, Fifth Circuit, pointed out:
“The record shows that the agents did no more than present an opportunity for the violation of the Act by the sale of a prescribed drug without the necessary refill authorization. ’ ’
Here, Patrick was simply presented the opportunity to violate the law without the necessary refill authorization. Mr. Rush used no persuasion; not in any manner did he induce Patrick to violate the law. There is no reason to believe that the same result would not have occurred if Rush had been a bona fide purchaser for a real Mrs. Nancy Henry, who had originally obtained her tablets, by prescription, from a Walgreen drug store. Under those circumstances, appellee, in selling the tablets, would have as surely been guilty of a violation of the law, as under the actual circumstances. It may well be that persons over the country, who have never obtained authorization (prescription) from a physician, acquire these tablets in just such a manner.
As to the second charge, it is contended that Patrick violated Item 5 of § 72-1040, which provides that grounds for revocation or suspension exist if the phar macist “has directly or indirectly aided or abetted the practice of pharmacy by a person not authorized to practice pharmacy by the Arkansas State Board of Pharmacy. ’ ’ Relative to this charge, the trial court said:
“However, aside from that, it also does not appear from the evidence that Mr. Patrick did anything that could approach aiding and abetting this lady, Mrs. Hughes, to practice pharmacy. In fact, the evidence does not even show that she practiced pharmacy. It is true that in response to leading questions there is assent at times by a witness to counsel’s statement that Mrs. Hughes filled the prescription being inquired about but a close reading of the testimony convinces the Court that no witness really testified that he saw her do anything but put an already printed label on a container■ and it is the Court’s opinion that putting such a label on a container does not constitute the practice of pharmacy.”
We disagree with this finding. Let it be remembered that without appellee’s assistance in signing the prescription, Mrs. Hughes could not have sold the container and its contents to Rush, i. e., the drug could not be dispensed without a prescription, because, on inventory, the drugs dispensed must tally with the prescriptions on file. Mr. Patrick signed the prescription. In other words, appellee, though not the direct perpetrator of the prohibited act, yet rendered an act which aided the actual perpetrator. We think there is good reason for such a prohibition, and though nothing more is done than to place a label on a container, it is quite evident that some knowledge is necessary in order to place the proper label on the package. There are hundreds of drugs on the market at this time, and an erroneous set of directions could well result in the impairment of a customer’s health. It is true that there is a difference between the act performed by Mrs. Hughes, and the compounding or mixing of a preparation called for by a prescription. Nonetheless, we think the public welfare demands that the dispensing of drugs, including the giving of directions, be performed only by an authorized pharmacist.
While we are of the view that there was substantial evidence to support the findings of the board that Patrick had violated the law relating to the practice of pharmacy, we think the punishment administered was too severe. Act 103 of 1963 provides uniform administrative procedures for occupational and professional licensing boards and commissions, including Arkansas State Board of Pharmacy, and prescribes a uniform procedure for taking appeals. Section 19 of that act provides that the court may modify the decision of the board, inter alia, if it finds same to be “arbitrary or capricious. ’
We have concluded that the board, in fixing the punishment herein, acted arbitrarily in the sense that the judgment was extremely harsh, and unreasonable, under all of the facts. Though the evidence reflects that Patrick has been a practicing pharmacist for 28 years, the transcript does not reveal any blemish ‘(except the present charge) on his record. While he certainly did wrong in pursuing the course of action complained of, it may well be true that he had every intention of calling Turn-bow, but when other matters intervened, overlooked it. He apparently was familiar with the practice of that doctor in prescribing the particular type of tablet involved. At any rate, we think that, to permanently bar an individual from the profession that he studied and prepared himself for, and has practiced for many years, apparently in a law-abiding manner, requires proof that makes it clearly evident that that individual had embarked on a calculated course of willfully violating the law. That has not been established in this case. We think also that it must be recognized that there is a difference ’ in dispensing Enovid, and in dispensing barbiturates and narcotics. It is onr view that, under the evidence cited, Patrick should he suspended from practicing pharmacy for the period of one year. Certainly, this should he sufficient to impress upon the mind of this appellee, and others who may have been careless in dispensing drugs, that the laws relating to the practice of this profession must he observed.
Accordingly, it is the order of this court that the judgment of the Union County Circuit Court be, and hereby is, reversed, and the cause is remanded to that court with directions that it enter its judgment requiring the State Board of Pharmacy to enter an order in conformity with this opinion.
Fogleman, J., dissents in part.
The container, in fact, still contained one Enovid tablet.
Donald W. Steeks, Secretary of the Board of Pharmacy, testified that “a legend drug is controlled by the Food and Drug Act and bears the statement to be dispensed only on a physician’s prescription or a doctor’s or a dentist or a veterinarian.” Mr. Patrick himself agreed that it was a drug requiring a prescription.
The board asserts that the prescription was written by Mrs. Sue Hughes, unlicensed to practice pharmacy, an employee of the drug store. This assumption is apparently based on the fact that Mr. Gene Porter, owner of the drug store, denied that he wrote the- prescription, appellee stated that he did not know who wrote it, and it subsequently developed that Mrs. Hughes had written a similar prescription, which will be hereafter discussed.
The packages and labels in both instances were introduced into the record as exhibits.
The “not” in the transcript has been scratched through in ink, and a question mark placed behind the word, and this finding of the judge is accordingly not clear. The abstract also includes the “not,” but the second sentence indicates that it has been stricken.
Act 434 of the General Assembly of 1967, which deals with the same subject matter, expressly repeals Act 103 of 1963, and in the section entitled “Judicial Review of Adjudication” Subsection (h) provides that the court may modify the decision if it finds that same was “arbitrary, capricious, or characterized by abuse of discretion.” This indicates that the General Assembly considered that these terms have quite similar meaning. The present case, of course, was subject to the provisions of Act 103 of 1963. | [
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CoNley Byrd, Justice,
Upon a plea of guilty, appellant John Allen Thornton was sentenced to three years in the penitentiary for burglary and three years in the penitentiary for grand larceny, both sentences to run concurrently. In this appeal he relies upon the following points:
I
That the court erred in sentencing the appellant to more than the minimum sentence upon the plea of guilty.
II
That his sentence should have been suspended because the alleged co-defendant entered a guilty plea and received a suspended sentence.
III
That the appellant did not understand he was entering a guilty plea nor the consequence thereof.
The record shows that appellant, together with Charles Clifford Durden, was charged with the crimes of burglary and grand larceny in that on December 17, 1966, he feloniously entered the building of Standard Furniture Company and carried away therefrom property in the aggregate value of more than $35. By another information he was charged with the crimes of burglary and grand larceny in that on January 14, 1967, he fel-oniously entered the building of the Brandon Furniture Company and carried away therefrom property in the aggregate value of more than $35. On April 3 he appeared in court with his attorney and pleaded not guilty. On July 19 he appeared in court with the same attorney, changed his plea to guilty and received the two concurrent three-year sentences.
Ark. Stat. Ann. § 41-1003 (Repl. 1964) sets the penalty for burglary at not less than 2 nor more than 21 years. Ark. Stat. Ann. § 41-3907 (Repl. 1964.) sets the penalty for grand larceny at not less than 1 nor more than 21 years. Ark. Stat. Ann. § 43-1222 (Repl. 1964) provides that a court may permit withdrawal of a guilty plea at any time before judgment. Ark. Stat. Ann. § § 43-2324 (Repl. 1964), -2326 and -2331 (Supp. 1967) provide for suspended sentences. It is within the discretion of the trial court to fix sentences, within the limits prescribed by law, to suspend sentences and to permit withdrawal of a guilty plea at any time before judgment. There is nothing in the record to show any abuse of this discretion by the trial court.
Actually the record does not show that the co-defendant, Charles Clifford Durden, received a sentence different from that given appellant, but even if it did it would still be a matter within the discretion of the trial court to give different sentences to different persons charged with the same offense.
Nor is appellant’s third point supported by the record. Until the contrary is shown? we will assume that a person who appears in court with an attorney of his choice has ample opportunity to understand when he has entered a plea of guilty and the consequences thereof.
Affirmed. | [
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Lyle Brown, Justice.
The State, through the attorney general, prosecutes this appeal under the authority of Ark. Stat. Ann. § 43-2720 (Repl. 1964), contending the ruling of the trial court should be corrected to preserve uniformity in the administration of the criminal law. Willie Gene Jacks, defendant below, successfully moved to quash an information charging him with failure to discharge mechanics’ and materialmen’s liens in violation of Ark. Stat. Ann. § 51-640 (Supp. 1965).
Jacks’ motion to the trial court raises two points. First, he contends § 51-640 is unconstitutional in that it attempts to establish a prima facie case of intent to defraud when a contractor fails to discharge a lien within ten days after receipt of payment. Second, after he is alleged to have received the money, Jacks was adjudged a bankrupt by the United States District Court; that adjudication, so Jacks contends, placed Ms person and property within the exclusive jurisdiction of the bankruptcy court. The two contentions must he separately considered.
Prior to 1963, the penalty statute for failing to satisfy the involved liens was controlled by Ark. Stat. Ann. § 51-601 (1947). That section was declared unconstitutional in Peairs v. State, 227 Ark. 230, 297 S. W. 2d 775 (1957). The absence of the requirement that intent to defraud be established in a prosecution was the basis for the holding in Peairs. Apparently for the purpose of filling the void, the Legislature enacted a new penalty statute in 1963, Ask. Stat. Ann. § 51-640 (Supp. 1965). This is the law under which Jacks was charged. It contains the element of “intent to defraud" and in addition contains tMs sentence:
“In any prosecution under this act [§§ 51-640, 51-641] as against the person so receiving payment when it shall be shown in evidence that any lien for labor or materials existed in favor of any mechanic, laborer or materialmen and that such lien has been filed within the time provided by law in the office of the circmt clerk or other officer provided by law for the filing of such liens, and that such contractor, subcontractor or other person charged has received payment without discharging the said lien to the extent of the funds received by him, the fact of acceptance of such payment without having discharged the same lien within ten [10] days after receipt of such payment or the receipt of notice of the existence of such lien, whichever event shall occur last, shall be prima facie evidence of intent to defraud on the part of the person so receiving payment. ’ ’
Appellee asserts that the statutory presumption of intent to defraud is unconstitutional. He cites Bailey v. Alabama, 219 U. S. 219 (1910) and Pollock v. Williams, 322 U. S. 4 (1944). The statute in Bailey was struck down on other grounds. First, it was found to be in violation of the federal anti-peonage statutes. Secondly, Alabama had a rule of evidence that would prohibit Bailey from testifying as to uncommunicated intentions. Combining that rule with the “prima facie evidence rule,” it is readily seen that Bailey’s defense was literally “blocked in.” Finally, it was found to be the fundamental purpose of the Alabama statute “to compel, under the sanction of the criminal law, the enforcement of the contract for personal service. . .” Pollock involved a statute classified by the court as a peonage statute and in the context of the type of legislation the presumption section was held unconstitutional. The court said the presumption in Pollock “in a different context might not be invalid, Indeed, we have sustained the power of the state to enact an almost identical presumption of fraud, but in transactions that did not involve involuntary labor to discharge a debt. James-Dickinson Farm Mortgage Co. v. Harry, 273 U. S. 119.” (1927)
The general rule, well established in many jurisdictions, including the United States Supreme Court, is well stated in O’Neill v. United States, 19 F. 2d 322 (1927):
“The general principle is well recognized that even in criminal prosecutions, Congress or a state Legislature may with certain limitations enact that when certain facts have been proved they shall be prima facie evidence of the existence of the main fact in question. . . The limitations are these: There must be some rational connection between the fact proved and the ultimate fact presumed; the inference of the existence of the ultimate fact from proof of the other fact must not be so unreasonable or unnatural as to be' a purely arbitrary mandate; and the accused must not be deprived of a proper opportunity to present his defense to the main fact so presumed and have the case submitted upon all the evidence to the jury for its decision.”
The case at bar clearly cannot be classified as a peonage statute. It is more comparable to our law making it an offense to execute an overdraft which likewise contains the presumption clause. Ark. Stat. Ann. §§ 67-720-24 (Repl. 1966). This court said in Edens v. State, 235 Ark. 284, 357 S. W. 2d 641 (1962) that the only effect of the presumption clause in § 67-722 is to place the burden on the defendant to go forward with the case. The burden of proof is not shifted.
Further protection is afforded Jacks by the holding-in Reno and Stark v. State, 241 Ark. 127, 406 S. W. 2d 372 (1966), where we held that it is improper .for the trial court to advise the jury of the presumption provision. Reno and Stark involved the charge of failure to discharge materialmen’s liens.
We hold that the presumption clause has a rational connection with the balance of our statutes governing-mechanics’ and materialmen’s liens. It is not arbitrary. The accused is not deprived of opportunity to present his defense on the main fact. The presumption of innocence remains with the accused and the burden of proof on the whole case is in the State. The accused is merely required to go forward with his proof when the lien is established, payment is proven, and the failure to satisfy the lien is shown.
We can quickly dispose of the argument that if one violates a state law of this nature and before prosecution is adjudged a bankrupt, he gains immunity from the violation. That is the substance of the second point raised by Jacks. If a contractor receives payment which under valid legislation is required to be used to discharge lawful liens, but instead, misappropriates the payment with criminal intent, he is subject to prosecution. The federal bankruptcy law is a civil proceeding enacted for the relief of persons financially distressed and certainly does not purport to pre-empt our state penal statutes.
Reversed and remanded.
Byrd, J., dissents. | [
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G-eorge Bose Smith, Justice.
This case began as an application by the appellees, two qualified registered pharmacists, for a permit to establish and conduct a new pharmacy at 304 South Maxwell Street in the City of Siloam Springs. The State Board of Pharmacy defied the application on the ground that it did not meet the requirements of the Board’s Regulation 36, adopted in 1966. On appeal the circuit court reversed the Board’s decision, holding that Paragraph 2 of the regulation— the provision pertinent to this litigation — was invalid as 'being beyond the authority granted to the Board by the legislature. The correctness of that ruling is the controlling question here.
We quote Paragraph 2 of the regulation:
2. In determining whether to issue a registered pharmacy permit for a new pharmacy or for a new location of an existing pharmacy, the Board will determine whether public need and convenience will be served, by the granting of the permit at the particular location sought. The Board will not grant a permit where the granting of the permit will not serve the public need or convenience.
We needfnot narrate at length the facts developed at.the hearing before the Board, at which the appellees were no-t''represented by counsel. Their application for a permit was opposed by rival pharmacists in Si-loam Springs, whose testimony tended to show that the operation of a pharmacy at the particular location selected by the appellees would eventually create a monopoly.
The threat of a monopoly stems from these facts: Five of the six physicians practicing in Silo am Springs are building a medical center which they will occupy together. They plan to construct, next to- the. medical center, a fully-equipped pharmacy. The appellees hid for the privilege of running the pharmacy. They will pay a monthly rental of $550 for the small pharmacy building (as compared to the rental of $75 a month formerly paid by the appellee Toy for a drugstore building in the same city).
One of the doctors testified that his group will have no interest in the pharmacy, will make no effort to send patients to the pharmacy, and will have no agreement with the pharmacists for rebates or a share in the profits. Despite the doctors’ protestations counsel for the Board argue, and the Board doubtless believed, that the doctors’ self-interest, stemming from their ownership of the building and their power to fix the rent, would ultimately result in their channeling so much business to the clinic-connected pharmacy as to give it a decided competitive advantage over the other three pharmacies in the city.
Turning to the pivotal question of law — the validity of Paragraph 2 of Regulation 36 — we emphasize at the outset that our sole inquiry is whether the legislature has conferred upon the Board of Pharmacy the power to determine, as a condition to the issuance of a permit, whether the public need and convenience will be served by the operation of a pharmacy at the particular location selected by the applicant. We are not concerned either with the wisdom of the statutes governing the Board or with any questions of medical ethics that might be raised with respect to the proposed medical center and pharmacy.
Our study of the pertinent statutes firmly convinces us that the legislature has not undertaken to delegate to the Board of Pharmacy the power to exercise the authority embodied in the regulation in question. The various acts pertaining to the Board are compiled as Title 72, Chapter 10, of the Arkansas Statutes Annotated (Repl. 1957).
The Board was created by Act 50 of 1891. That statute authorized the Board to register qualified pharmacists, with or without examination as directed by the act. It was made unlawful for any person not a registered pharmacist to conduct a drugstore, pharmacy, or apothecary shop for the compounding- or dispensing of medicines.
Act 72 of 1929 embodied a more comprehensive enumeration of the Board’s powers and duties. For the first time the Board was directed to register not only pharmacists but also pharmacies. Section 8 of the act provided that no person should conduct a drug-dispensing pharmacy unless it had been registered with the Board and a permit therefor obtained. Ark. Stat. Ann. § 72-1017. There was, however, no suggestion whatever that the Board was given any discretion in the matter' of issuing pharmacy permits to qualified pharmacists. To the contrary, Section 5 of Act 72 (§ 72-1013) declared, “A registered pharmacist shall have a right to conduct a pharmacy.” Moreover, Section 9 of the act (§ 72-1018), governing the issuance of pharmacy permits, stated that the Board “shall” issue such permits to persons the Board deems to be qualified to conduct a pharmacy. There is no hint of discretionary authority, other than in the matter of the applicant’s qualifications.
Finally, we come to Act 57 of 1955, upon which the Board relies for its delegated authority to approve or disapprove pharmacy applications on the basis of public need and convenience. In point of fact, Act 57 contains not even a line bearing directly upon the issuance of pharmacy permits. The act had as its principal purpose the creation and regulation of a new class of pharmacists, to be known as Practical Druggists. Almost every section of the act bears npon the licensing and authority of such Practical Druggists. In fact, Section 9 (§ 72-1011.5) recites: “This act is an emergency measure and any person desiring to obtain the benefits hereof and become a licensed “Practical Druggist” must file his or her application with the . . . Board of Pharmacy within ninety days after the effective date of this act ... or be forever barred.”
The Board, in insisting that it has the authority to condition the issuance of pharmacy permits upon a showing of public convenience and necessity similar to that required in the licensing of public utilities, relies upon Section 19 (§ 72-1004.1) of the foregoing Practical Druggist act, which reads as follows:
The Arkansas State Board of Pharmacy shall have authority to make reasonable rules and regulations, not inconsistent with law, to carry out the purposes and intentions of this act and the pharmacy laws of this state which said Board deems necessary to preserve and protect the public health. (Our italics.)
There are two clear-cut answers to the Board’s insistence that the language which we have italicized was intended to confer upon the Board a broad, nebulous, and unfettered authority to promulgate any regulations which it deems necessary to preserve and protect the public health.
First, the asserted legislative delegation of rule making authority must be read in context. It is not reasonable to believe that the lawmakers meant to bury deep in a statute governing Practical Druggists a single clause that would invest the Board with far greater powers than those granted by all the other pertinent statutes put together. Secondly, even if the legislature had decided upon a delegation of such unlimited and un-> bridled power, the language now in question would violate the familiar constitutional principle that in delegat ing legislative authority the General Assembly must spell out appropriate standards for the guidance of the administrative body by which the power is to be exercised. Walden v. Hart, 243 Ark. 650, 420 S. W. 2d 868 (1967).
It is not our province to say whether the legislature should invest the Board with the discretion that it sought to draw to itself by the adoption of the regulatory rule now in controversy. Our unavoidable conclusion that the legislature has not done so is decisive of the present case.
Affirmed. | [
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CoNley Byrd, Justice.
This appeal by Carl Widmer is from an order dismissing his complaint against Otis S. Tole, Burl T. Ruth and Lewis Kremers, a partnership doing business as Otis Tole Equipment Company, for failure to comply witli an order of the court to make more definite and certain. At issue is the question whether appellant had complied with the court’s order.
The complaint contained two counts. The first count set forth the purchase of certain used and new farm machinery from appellees and alleged damages of $11,-270 for breach of certain expressed and implied warranties in the performance of the machinery and the failure of appellees to deliver some of the equipment at the time agreed upon. The second count alleged appellees’ removal and conversion of the machinery, actual damages including the rental value, and punitive damages. The complaint was filed by appellant, acting as his own attorney, on November 2, 1965.
On November 17, 1965, appellees filed a Motion to Make More Definite and Certain. This motion, which takes up four pages in the record, detailed the information sought by appellees. It requested appellant, among other things, to state the exact date that each item of equipment broke down, the repairs that were necessary, the expense he incurred for each item repaired and the exact damage claimed for each piece of equipment repaired. One of the many items requested to be made more definite and certain was the question of how appellant arrived at the figure of $5,500 for punitive damages.
On February 2, 1966, appellant filed a Request for Admission of Facts containing fifty-three separate statements. These fifty-three statements attempted to tell of the dealings had by appellant with appellees involving the farm machinery from the date of first contact to the time appellees repossessed the machinery. In proper time appellees filed responses to the Request for Admission of Facts.
Under filing date of March 13, 1967, the court entered an order reciting that on March 8, 1967, the matter of the Motion to Make More Definite and Certain came on for hearing and giving appellant twenty days to comply with the request for information contained in appellees’ motion.
On March 24, 1967, appellant filed an additional Request for Admission of Facts containing seven separate statements about the damages he sustained. Appellees properly responded to this Request for Admission of Facts.
On March 28, 1967, appellant filed the following:
“Comes now the plaintiff in response to Court’s Order, filed March 13, 1967, to make more definite and states, that plaintiff incorporates and makes a part of this Response as if set out word for word: all facts set out in the 53 statements contained in Request for Admission of Facts, dated and filed February 2, 1966; all facts now in the exclusive possession of defendants, that come into possession of the plaintiff when defendants respond to Interrogatories to Defendants, dated and filed January 25, 1967; and all facts set out in the 7 statements contained in Request for Admission of Facts, dated and filed March 24, 1967. And that all essential and pertinent ¡ questions raised by defendants are answered by the facts set out above.”
Thereafter, pursuant to a motion filed by appellees on April 6, 1967, the Court on April 11, 1967, dismissed appellant’s complaint because of his failure to comply with the order of March 8 to make more definite and certain.
We hold that the response of March 28, 1967, which incorporated the many statements contained in the Requests for Admission already filed, was a sufficient compliance with the order to make more definite and certain. The information was not only necessary to comply with appellees’ motion, but the court’s order of March 8 is subject to the construction that an answer was required to each of the various requests made in appellees’ motion. Actually, the statements of fact contained in the Bequests for Admission of Facts had set forth in chronological order the dealings appellant had had with appellees and the manner in which he had arrived at his damages. He could not have made a more literal compliance with appellees’ motion had he copied into his response the identical information set forth in the Requests for Admission of Facts.
Appellees contend that appellant’s Motion to Vacate, filed more than fifteen days after the April 11, 1967 order dismissing the complaint hut within the thirty days allowed by Act 123 of 1963, is a motion for new trial and that consequently the appeal was not filed in time. We so held in the first opinion in Widmer v. Wood, dated September 18, 1967, but upon rehearing decided the issue contrary to appellees’ contention, heard Widmer v. Wood, 243 Ark. 457, upon its merits and entered a substitute opinion.
It is unfortunate for the trial court and the members of the bar representing the many litigants involved that appellant has elected to represent himself. Any lawyer or judge who has ever participated in a proceeding in which a litigant elects to represent himself is aware of the many problems that arise.- This case is no exception, for appellant is in a position to make an occupation of the lawsuit whereas the people who hire counsel are burdened with the extra expense caused by appellant’s liberal use of the discovery procedures. The trial court’s order, the motions contained in the record, and appellees’ brief all carry overtones of an abuse of the discovery privilege by appellant. While the issue has not been squarely presented here and we need not rule on the matter at this time, for the benefit of the trial court and the many litigants we point out that the discovery procedures also contain restrictions upon abuse “from annoyance, embarrassments, or oppression.” See Ann. 70 A.L.B. 2d 685.
Reversed and remanded.
Dissenting Opinion delivered March 25, 1968 | [
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' Smith, Justice.
Blackwell was indicted for the sale of one pint of ardent liquors without license. The testimony showed a single sale of whiskey and no more. The court directed the jury, if they found the defendant guilty, to assess his fine at $1,400. They returned a verdict of guilty, but neglected to fix the punishment. Thereupon the court fined him $1,400. The only question which the appeal presents is, what is the penalty for selling liquors without license ?
The license act of March 8, 1879, (Sec. 5) prescribes a fine of not less than $200 nor more than $$00 for this offense. But the Revenue Act of March 31, 1883, Secs. 4 and 5, under the head of privileges subject to taxation, “provides that a state tax of $300 and a county tax of $400 shall be levied and collected upon every vendor of spirituous, vinous or malt liquors, doing business in this State, for the term of one year or less; that any person wishing to engage in the sale of liquors, shall first pay for and take out a license for the privilege ; and that any person who shall engage in the sale thereof without having paid this tax, shall upon conviction be fined in double the amount of license he would be chargeable with. Was this an implied repeal or modification of the penalty denounced by the Act of 1879? Of this opinion were the learned and painstaking gentlemen who compiled the latest revision of our laws. Mansf. Dig., Sec. 4511.
The intention of the Legislature is not manifest. For, by reference to the journals, we observe that the “Blind Tiger” Act, which received the approval of the governor and became the law one day earlier than the revenue law, yet actually passed the last of the two houses one day later, continues the old penalty of not less than $200 nor more than $500, in respect to clandestine sales of liquor. Mansf. Dig., Sec. 1932. We are, therefore, forced to resort to the ordinary canons of construction to ascertain what it was the Legislature did mean.
Prior laws are abrogated by subsequent ones that are inconsistent therewith. The repeal may be expressed in words of revocation, or there may be such a plain repugnance between the two statutes that both cannot stand; or the later enactment may cover the whole subject embraced by the former and contain new provisions, indicating that it was intended to be a revision of and substitute for the former act. State use. v. Watts. 23 Ark., 304; Osborn, exparte, 24 Id.. 479; Coats v. Hill, 41 Id., 149, and cases there cited.
Now, the Revenue Act of 1883 does not expressly repeal any provision of the License Law of 1879, although it does certainly modify it as to the amount required to obtain a license and in other particulars. Drew County v. Bennett, 43 Ark., 364. Nor do the two acts cover the same field of legislation; one being directed to the general subject of raising revenues and the other to the .particular subject of regulating the sale of intoxicating liquors. So that, if there is any repeal in this case, it must be on account of an irreconcilable conflict between their several provisions.
Courts of justice have never favored repeals by implication, but have always endeavored so to construe two apparently inconsistent statutes as to give effect to both if possible.
Upon an examination and comparison of Sec. 5 of the Act of March 8, 1879, and Sec. 4 of the Act of March 31, 1883, we conclude with some hesitation that there is no such repugnance between the two as to require us to hold, under the principles governing the construction of statutes, that the former was repealed by the latter. We may consider the former as designed to punish occasional sales of liquor, by unauthorized persons having no bar-rooms or regular places of business and without the usual appliances of retail liquor dealers. Thus, a farmer, not contemplating to engage in the business of selling liquor, might, as a matter of favor or accommodation, sell his neighbor a bottle of whiskey. Ihis is an offense against the good order of society and, therefore, punishable, but not seriously detrimental to the revenues of the State and county. But the later Act is pointed at those who undertake to carry on the business of selling liquors without the payment of the proper tax. The essence of the offense is the defrauding of the State and county of their legitimate revenues. Therefore, the indictment must charge that the defendant was a liquor dealer, and the evidence should show, not a solitary instance of selling spirits, but that a trade has been carried on in violation of the law. State v. Martin, 34 Ark., 340.
The judgment of conviction is affirmed; but the sentence of the court imposing a fine of $1,400 is vacated, and the case remanded with directions to assess the defendant’s fine at a sum not smaller than $200 nor exceeding $500. | [
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Smith, J.
This was a proceeding for the purpose of affiliating a bastard child and compelling aid from the father in its support. It was begun in the County Court, which has exclusive original jurisdiction of such matters, and was removed, by appeal, to the Circuit Court. On the trial the Defendant tendered himself as a witness, but he was not permitted to be .sworn. At the date of the trial (August, 1884,) persons accused of crimes could not testify in their own behalf, but in civil •actions it was no cause for the exclusion of a witness that he was a party to the record. Consequently, the correctness of the ruling depends on the question whether this was a civil or criminal proceeding.
Bastardy proceedings have many of the characteristic features of a criminal prosecution. The State is the Plaintiff. A warrant issues for the apprehension of the reputed father. When arrested he is required to give bail for his appearance. The prosecuting attorney conducts the suit on behalf of the State, and officers of the court are allowed fees as in criminal cases. Mansfield's Digest, Secs. 446, 455, 458. And in Jackson v. State, 29 Ark., 62—a case which arose while the constitution of 1868 was in force and while justices of the peace had jurisdiction of this class of cases, proceedings in bastardy were assimilated to prosecutions for crimé. Indeed, it was intimated that it was necessary to take this view in order to maintain the constitutionality of the statute giving justices of the peace jurisdiction! For, if it was a mere civil remedy, it was difficult to see what justices had to do with it, their civil jurisdiction extending only to actions of contract and replevin. If we are to determine the nature of the proceeding from the court to which jurisdiction is confided, we shall be forced to the conclusion that, in the view of the framers of our present constitution, the primary object is, not the punishment of the guilty parties, but to prevent the offspring of the illicit connection from becoming a. charge and burden upon the public. For the entire jurisdiction of the County Court relates to the regulation of the internal affairs and local concerns of the respective counties. It has no criminal jurisdiction. Compare on this point Brizzolari v. State, 37 Ark., 364. And again the proceeding is set on foot, not by presentment of a grand jury, but on complaint of the mother, or by the county judge acting upon his personal knowledge or information in his possession. Mansfield's Digest, Secs. 446, 457. And the judgment is not for the imposition of a fine or penalty, but for a certain sum for the lying-in expenses of the mother, and a further judgment payable by monthly installments, and for the execution of a bond, conditioned to indemnify each county in the State from all costs for the maintenance of the child, while under the age of seven years. Ib. Sec. 450.
From these considerations it is apparent that indemnity and protection of the counties against the burden of supporting the child, and not the punishment of the father, are the objects contemplated by the statute. And in this view it is a civil and not a criminal proceeding. Mann v. People, 35 Ill., 467; State v. Pate, Busbee (N. C.), 244; State v. McIntosh, 64 N. C., 607; State v. Hickerman, 72 Id., 421. Hence the Circuit Court erred in excluding the Defendant from the witness stand.
Reversed and remanded for a new trial. | [
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Smith, J.
This was a petition for dower in eight 72-iooth acres of land. The defense was that the petitioner’s husband, Benjamin F. Richardson, was never beneficially seized of the premises, but held the legal title in trust for those under whom the defendant claimed. The cause was transferred to equity, and was there determined adversely to the widow.
The land is parcel of a tract of eight hundred acres, which Richardson and William E. and Henry C. Ashley purchased for their joint account in 1856, making their joint notes for the purchase money, and receiving a bond for title. It was agreed between themselves that Richardson should pay one half the purchase price and the Ashleys the • remainder. They divided the land equally, the portion now in controversy falling to the Ashleys, who erected thereon an expensive and commodious gin-house, with the usual appurtenances. Richardson paid his share of the debt; but the Ashleys were largely in arrears. And the vendor recovered judgment against the purchasers, and a decree of foreclosure condemning the whole of the land to sale. The land being advertised, an extension of time was granted upon condition of immediate payment of $3000. For this sum Richardspn reluctantly gave his draft, as the debt was properly the Ashleys’, although he and his land were legally bound for its payment. He was assured and believed that the Ashleys would provide for the draft; but he was forced by process of law, many years afterwards, to pay the draft.
In the fall of 1869, when the commissioner’s sale of the lands under the decree was to come on, William E. Ashley being dead, and Henry C. convinced of his inability to pay the land out, it was agreed bétween Richardson, Henry C. Ashley and one Johnson, that Johnson ^should pay off the remainder of the decree, some $8000 after deducting the proceeds of the above mentioned draft, and should have Ashley’s half of the land, except the eight and 72-1 ooth acres. This small lot Ashley was to be permitted to keep, because his steam gin, built for the convenience of his adjoining plantation, stood upon it. But, as the original .vendor of the land had died, leaving infant heirs, it was con sidered the shortest method of extinguishing their title to allow the sale to proceed. The land was to be sold in one body, and Richardson was to bid it in and receive a conveyance. This would secure in him the title to his one-half, and when Johnson should pay the money, he would convey their respective parts to Johnson and to Ashley. The testimony tended strongly to show that the arrangement was carried out; that Johnson furnished the money to pay Richardson’s bid at the decretal sale, and that Richardson afterwards quit-claimed the gin-house tract to Ashley’s grantees, from whom the defendant derives his title. In this conveyance Mrs. Richardson did not join; nor has she ever renounced dower. Her husband was seized during coverture of the legal estate in the premises Í and she is entitled to her thirds, unless he jtvas a mere nominal grantee and in reality a trustee.
When another branch of this controversy was before us (see Johnson v. Richardson, 44 Ark., 365), we expressed our reluctance to permit the effect of solemn deeds and written documents to be controlled by parol evidence of the intentions of the parties to them, adduced some thirteen years after the writings were executed. Nevertheless parol proof is admissible to show a resulting trust in a deed absolute on its face, even after the death of the grantee. Perry on Trusts, Secs. 137-8; Milner v. Freeman, 40 Ark., 62; Babcock v. Wyman, 19 Howard, 289.
Here, Mr. Bell, the commissioner charged with the execution of the decree, and Mr. Grace, Richardson’s legal adviser, both of whom were familiar with the circumstances of the entire transaction, depose to the payment of the purchase money by Johnson, and the previous verbal agreement, out of which the trust arose. The subsequent conduct of both Richardson and Ashley is consistent with the existence of a trust. Richardson never attempted to take possession of this gin property, although it was valuable, the annual rents amounting to $960. And there is nothing in the record to rebut the presumption of a trust in favor of Ashley, except the deed to Richardson, the report of sale, which states that he was the purchaser, and the commissioner’s receipt, acknowledging the payment of the consideration by him.
True, this same testimony was used in the previous case, wherein we intimated an opinion that, so far as we could see, Richardson was seized of such an estate of inheritance in the lands that he afterwards conveyed to Johnson’s children, as to entitle his widow to dower, if she had not relinquished it. But there is one circumstance that distinguishes the two cases. After the creation of the trust—assuming that a trust once existed—Johnson executed a deed of rescission, by which he released Richardson from the obligation of the trust, abandoned to him all his rights in the lands, and attorned to Richardson as his landlord. There is no evidence that the agreement between Richardson and Ashley was ever canceled, or meant to be canceled. «.Oh the contrary, Richardson afterwards conveys by quit-claim deed to Ashley, apparently in pursuance of the agreement.
At the hearing, the defendant was allowed to put in evidence a letter addressed to him by Richardson, shortly before his death, and after his property had been sold to satisfy the judgment rendered on the $3000 draft. In the course of this letter the writer said:
“ In regard to the gin-house and land attached, I never in equity had or pretended to have any claim to it; in order to settle the Scull claim against Ashley and myself the technicalities of the law had to be complied with, and the land was deeded to me in order that a clear title could be made to the parties buying the same ; I never paid one cent for it; neither did I ever pay any taxes on it; in short, I only held as above stated.”
The letter would be conclusive on the point of Richardson’s relation to the land, if it were competent evidence. But the ■declarations of a grantee or former owner in disparagement of ■his title, made after he had parted with that title, are inadmissible for any purpose.
The payment of the draft for $300o did not vest in Richardson any estate in the Ashley half of the land. Its utmost possible effect was to create an equitable lien for reimbursement by reason of having advanced more than his due propor- 1 tion of the original purchase money. But even this potential charge was waived or extinguished by the failure to file a bill to establish it, and by the agreement with Johnson and Ashley, and Richardson’s conveyance in pursuance of that agreement.
Decree affirmed. | [
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Cockrill, C. J.
Foster, Morris and Fox, were jointly indicted for robbery. They elected to be tried separately, and Foster, being first put upon trial, offered his co-defendants as witnesses in his behalf. They were rejected by the court on the ground of incompetency. Foster was convicted, and assigns this ruling of the court as error.
At common law, the parties to the record, whether in civil or criminal cases, are excluded from testifying, by an inflexible rule of evidence. In civil actions, the disqualification has long been removed, and in the present year an act was passed making a defendant on trial for a criminal offense a competent witness in his own behalf. Acts 1885, p. 126. It is contended that this act has removed the disability of all parties to the record, and renders them competent to testify for each other. The act does not do this expressly. State v. Dee, 14 Minn., 35; People v. Reagle, 60 Barb., 527, 547. Its terms apply only to persons charged with crime, who are on trial, and if it authorizes any such person to do more than testify in his own behalf, it must be because the statute has removed the reason of the former rule, and thus let the co-defendant in to testify under the maxim, cessante ratione cessat lex.
It was ruled by this court in Moss v. State., 17 Ark, 327, that one of several parties to an indictment could hot be a witness for the others while he remained a party to the proceedings, whether they were tried jointly or separately; and the rule has been strictly adhered to ever since. If the only reason for the exclusion of the defendant was his interest in the result, that is, that in testifying for his fellow-defendant he would in fact be testifying for himself, there would be no reason for excluding him from giving testimony indirectly for himself, when he is permitted to testify directly in his own behalf. But his exclusion was not founded solely on the consideration of interest, but in part, in the general expediency of avoiding the multiplication of the temptations to perjury. It is said to be against public policy to permit partners in crime to make testimony for each other, and thus evade the ends of justice. 1 Greenl. Ev., Sec. 329; State v. Nash, 10 Iowa, 81; Comm. v. Marsh, 10 Pick., 57; State v. Young, 39 N. H., 283; Henderson v. State, 70 Ala., 23.
Indeed, it can hardly be said that interest was the true ground of exclusion of a co-defendant tried separately. If indicted separately he was a competent witness for another charged with the same offense. McKenzie v. State, 23. Ark., 636. When indicted jointly, but tried separately, he was not a- party to the issue with the others; their separate trials could have no influence on his own', case, and the record could not be used either for or against him unless in exceptional cases. The interest he had in freeing his fellow-defendant, though he might reasonably hope that this would qualify the latter to testify for .him, could not be called a legal interest. It seems more appropriate to regard the common law ground .of exclusion in such cases to be that of public policy. State v. Nash, sup; Poteete v. State, 9 Baxter, 261. In the light of experience, under modern legislation on this subject, this may be regarded as a mistaken idea of public policy, but that is an.argument to be addressed to the legislative department. The courts cannot change the law for that reason.
Mr. Wharton, in his work on Criminal Evidence, Section speaking of such statutes as ours, says: "Husband and wife cannot, under the statutes, when not specially included, be called as witnesses for each other, except in the usual case of violence. They are excluded on grounds of public policy, and the statutes do not touch this question when they only relieve from the exclusion attached to parties.” The exclusion of husband and wife, as is well understood, is founded partly on the identity of their legal rights and interests, and partly on principles of public policy. 1 Greenl. Ev., Sec. 334. It is true the policy that excludes husband and wife is a social policy, not identical with that which excludes a co-defendant as a witness, but the principle ápplies the same in its application to the construction of the statute.
' But it ■ is, perhaps, immaterial what • reason was originally given for the disqualification of co-defendants. The rule, together with substantially the common law practice under it, has received the sanction of the written law, and no reason need be given, to sustain legislative action. Section 2275, Mansf. Dig., which is taken from the code of criminal procedure, is as follows: “ Where two or more persons are included in the same indictment, and the court is of opinion that the evidence in regard to a particular individual is not sufficient to put him on his defense, it must, on motion of either party desiring to use such defendant as a witness, order him to be discharged from the indictment, and permit him to be examined by the party so moving.” This, by strong implication, negatives the idea that one co-defendant can be a witness for the others.
Counsel for the appellant has not cited us to any case in point to sustain his position. The case of Collins v. People, 98 Ill., 584, relied upon by him, is based upon a statute which renders all parties to the record competent witnesses in criminal cases. The case of State v. Gigher, 23 Iowa, 318, is of the same class.
A statute in Missouri qualifies defendants in criminal cases to testify in their own behalf, (see Acts 1877, p. 536,) but the supreme court of that state has held that the rule forbidding co-defendants to testify for each other was. not abrogated by it. State v. Martin, 74 Mo., 547.
The act of the legislature now under consideration is almost identical with that of New York, passed in 1869.- In 1876 the legislature of that state passed an act making co-defendants in criminal cases competent witnesses for each other. Two persons were’indicted before, but were tried after, the passage of the act of 1876. The trial court refused to permit one of the defendants to testify for the other, but the court of appeals held that the latter act changed the rule of evidence, and that the accused was entitled to the benefit of it. People v. Dowling, 84 N. Y., 478, 484.
We think the court did right to follow the established practice and exclude the co-defendants offered as witnesses.
Statements made by Morris after the robbery, and in the absence of the appellant, were admitted in evidence by the court at the instance of the state, and this is urged as error. The evidence should have been excluded even if it had been in the nature of a confession, of the crime. Rowland v. State, ante; Polk v. State, ante. But substantially the same fact was testi fied to by the defendant himself, and the declarations of Morris were not as to a fact that tended, if true, to prove or disprove the robbery, and the appellant was not prejudiced by the evidence.
Newly discovered evidence, that goes only to the impeach-J , . 1 to J rment of a witness, is no ground for a new trial. Campbell v. State, 38 Ark., 498. There was nothing else.in the nqwly discovered testimony offered by the appellant.
This disposes of all the questions raised by the record. Finding no error, the judgment is affirmed. | [
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Cockrill, C. J.
The appellee was forcibly ejected from the appellant’s passenger train, in a desolate place, between the stations of Baring Cross and McAlmont, and sued the company therefor.
The jury, under instructions from the court, made the following special finding of facts :
1. The plaintiff did not pay or offer to pay his fare before the train was stopped for the purpose of putting him off.
2. The conductor did not put the plaintiff off at a usual stopping-place.
3. The conductor did not use any more force than was • necessary to expel the plaintiff and keep him off the train.
4. The conductor’s language was not rude or offensive.
And upon the general verdict the jury awarded plaintiff the sum of $100 damages.
The defendant moved the court to set aside the general verdict, and to give judgment for defendant on the special findings. This was refused, the ruling of the court was excepted to, and assigned as error in the motion for a new trial.
The important question in this case, and that doubtless for the decision of which it was brought here, is the construction of the following provision of the Act of July 23, 1868, Sec. 5474, Mansf. Digest: “If any passenger refuses to pay his fare or toll, it shall be lawful for the conductor of the train and the servants of the corporation to put him out of the cars at any usual stopping-place the conductor may select.”
The court instructed the jury that the conductor could lawfully eject a traveler, refusing to pay his fare, only at a usual stopping-place, even though there was no such place between the station where the party embarked and his destination.
The only exceptions saved at the trial, or errors assigned in the motion for a new trial, were to this charge and the refusal of the court to enter judgment for the company on the special finding of facts non obstante veredicto.
The evidence was conflicting upon the question whether the appellee paid his fare upon entering the train, but the jury settled it against him, and, if the statute has not restricted it, the company’s right to set him down upon the roadside without reference to stations or stopping-places, a due regard for his life and person being observed, goes without question.
In the case of the Toledo, Wabash & Western R’y v. Wright, the supreme court of Indiana ruled that a statute much like ours was persuasive only, and did not prohibit the railroad company from doing at any other point what it authorized them to do at a usual stopping-place. 68 Ind., 586.
We are not disposed to concur in this construction of our statute. Where an act undertakes to regulate the subject of which it treats, and points out the manner and place in which the act regulated may be done, there is an implied inhibition against doing it otherwise or elsewhere. In such cases the maxim, expressio unius est exclusio alterius, becomes a canon of construction. Watkins v. Wassell, 20 Ark., 410.
No legislation was needed to give, the railroad companies authority to expel a non-paying traveler at a station. They enjoyed a broader right, without legislation, and if the act was not intended to abridge the previous right it was unnecessary and is unmeaning.
Our statute is a literal copy of'the Illinois provision on the same subject, and in that state the prohibitory feature of the act is sustained in a series of decisions. Chicago, B. & Q. R’y Co. v. Parks, 18. Ill., 460; S. C. Thomp. Car., p. 319; Terre Haute, A. & St. L. R. Co. v. Vanatta, 21 Ill., 188; Chicago & A. R’y v. Flagg, 43 Ib., 364.; Toledo, P. & W. R’y v. Patterson, 63 Ib., 304; Chicago & N. W. R. R. v. Chisholm, 79 Ib., 584. The same effect is given to a like provision in Tex. & Pac. R. R. v. Carey, 52 Texas R., 112.
This construction is complained of in the argument as a hardship, and it is said the practical result will be that all railroad companies will be compelled to carry any passenger gratis to the next stopping-place. This seems to have been a controlling idea in the Indiana decision, but this argument goes to the policy of the law and not its construction. As is said by the Illinois court in the Parks case, sup., in answer to the same argument: “Under the .present system of allowing all persons to take their seats in the cars without tickets, and without paying their fare, this may be so, and such an effect is certainly to be regretted; but it is not impossible.to obviate the difficulty by requiring pre-payment. But, be this as it may, we cannot doubtthe power of the legislature to pass the law, if they deemed the public safety required it. After the company has allowed the passenger to take his seat in the car and started with him without demanding the toll, and without objection, the act provides that he shall not be thrust out, except at a regular stopping-place. This was, no doubt, deemed essential by the legislature, to the safety of the traveling public.....By putting the plaintiff off the train at a place not allowed by law, a technical wrong was' done him, for which, he undoubtedly had a right to bring this action and to recover such damages as he sustained for the wrong done him.”
It is maintained, however, that the plaintiff can - recover nominal damages only. It was certainly the company’s right to eject him at the next station, after his refusal to pay; or, if they had seen fit, to back their train to the station in the rear, and there put him off, and thereby lawfully subject him to all the humiliation and shame ordinarily incident to such a proceeding; and, as the mortification consists in being removed from the cars rather than in the place of removal, the conclusion is irresistible that the plaintiff should be permitted to claim nothing for lacerated feelings or wounded sensibilities for expulsion at a point’ other than the usual stopping-place. If, therefore, the only injury proved were the violation of the plaintiff’s right to be landed at a regular stopping-place, the wrong done him would be technical merely, and a verdict for more than nominal damages would-not be sustained. Authorities sup.; 2 Rorer on R’ys, 866. Where a plaintiff is without fault the jury may award him more than nominal damages, even though no actual injury to his person or pecuniary loss be proven, but not so in a case like this, where the plaintiff has himself committed the first wrong and the company has used no, unnecessary violence m expelling him for it. But the proof shows, and the jury by their verdict have found that the plaintiff sustained actual pecuniary damages. It is not necessary for us to inquire whether this damage reached the sum awarded by the verdict. The appellant acquiesced in the amount assessed by the jury, and contented itself with the contention that the judgment should be for it. *The question as to whether damages are excessive will not be considered here, where the appellant fails to make the objection in the trial court and assign it as error in the motion for a new trial. Crump v. Starke, 23 Ark., 131; Neal v. Singleton, 26 Ib., 491; Texas & St. Louis R’y v. Kirby, 44 Ib., 103; L. C. & L. R. R’y Co. v. Sullivan, 81 Ky., 624.
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Cockrill, C. J.
The appellants, who are the judgment creditors of J. R. Sherwood, filed their complaint in equity against him and his daughter, May B. Sherwood, to set aside a conveyance of land made by the debtor to his daughter, upon the expressed consideration of five dollars, while their suits at law, in which the judgments were rendered, were pending against him.
•The complaint showed that the appellants’ judgments were obtained before a justice of the peace in Union county; that •executions issued upon them on August 12, 1882, and were returned by the constable on the same day, with an indorsement of no property found upon which to levy; that on the 15th day of the same month duly certified copies of the transcripts, with the executions and returns of nulla bona, were filed in the office of the circuit clerk of Union county, and were there docketed as judgments; that on the same day executions were issued upon these judgments directed to the sheriff of Union county, and upon the following day a return of nulla .bona was made by the sheriff upon each of the writs, when ' alias executions were issued, directed to the sheriff of Jefferson county, who levied the same upon the land in question. The complaint was filed in the Jefferson circuit court, in aid of these executions.
The defendants answered that the conveyance was in good faith from father to daughter, upon the consideration of natural love and affection, and without knowledge on the part of the daughter of the father’s financial embarrassment. A demurrer to the complaint accompanied the answer.
The cause was submitted to the court upon the pleadings •and exhibits and proof of J. R. Sherwood’s insolvency. The complaint was dismissed at appellants' cost, the decree reciting that the demurrer was sustained by the court.
Doubtless the theory of the circuit court, in sustaining the demurrer, was that the creditors’ suit had been prematurely brought, the constable and sheriff of Union county having returned all the executions milla bona before the return day thereof.
The statute requires a return of nulla bona upon an execution issued by a justice of the peace, before the justice’s, judgment can be filed in the circuit clerk’s office for the purpose of reaching realty. The validity of an execution issued by the circuit clerk upon a judgment of this sort, where the constable had made his return before the return day, was: mooted but not decided in the case of Jones, McDowell & Co. v. Ark., etc. Co., 38 Ark., 17.
Section 4104, Mansf. Rev. St., makes an execution issued by a justice of the peace “returnable within thirty days.”' Under a provision of the New York code, which required the return of an execution by a sheriff “within sixty days,” tliecourt of appeals of that state hold that the period beyond which an officer shall not retain an execution is fixed, but that, the statute being silent as to how soon he may return it, the matter is within the officer’s discretion, subject to his liability to any one who may be injured by the insufficient or improper performance of his duty. “In ordinary cases,” says Léarned, J.t “it would doubtless be his duty to retain it for the purpose of'securing the amount until near the time limited for its return. If, however, the defendant should be known to the sheriff to be notoriously insolvent, and he should take the hazard of an early return, I see no objection to its legality.”' Renaud v. O'Brien, 55 N. Y., 102.
This is a fair exposition of the statute, and establishes a reasonable rule. See Treplow v. Buse, 10 Kan., 170; Middleton v. Nevitt, 17 Blackf., Ind., 51.
But beyond this it is the policy of the law to treat the return of an officer as conclusive, when presented in a collateral proceeding as this is.
In the case of Jordan v. Bradshazv, 17 Ark., 112, it was held that the failure of a constable to return the execution unsatisfied before the transcript is filed in the circuit clerk’s office is, at most, an irregularity, and is available to the defendant alone, and that too, only in a direct proceeding to quash the return. See, too, State v. Farrell, 19 Ib., 247.
The return of nulla bona upon the execution which went into the hands of the sheriff of Union county was made before the return day, and the court may have regarded it as premature and not competent to sustain this suit. This view is not without authority to sustain it, but the provision of the statute in regard to the return of an execution from the circuit court does not vary materially from that above quoted, (see Mansf. Rev. St., Sec. 2971,) and what is said of one is applicable to the other.. When it becomes apparent that the effort to raise the debt by execution will be fruitless, it would be unreasonable to require the creditor to hold his other remedies in abeyance until the return day of the writ, and thereby afford the debtor the opportunity of effecting measures to evade all subsequent proceedings. Freeman Ex., Secs. 353, 399, and cases supra; Sperling v. Levy, 10 Abb. Pr., 426; Tyler v. Whitney, 12 Ib., 465.
The proceedings recited laid the basis for equitable relief. The question of fraud could not seriously perplex a court of equity. The case stands thus : An insolvent- debtor, sued in a number of cases, conveys all his property subject to execution to a member of his family, for a grossly inadequate consideration expressed, but not in fact paid. This is conclusive of an intent to defraud the creditors on the part of the grantor, and it is immaterial whether the grantee participated in his design. It is the bona fide purchaser and not the innocent donee of an insolvent debtor, that courts seek to protect. Sal mon v. Bennett, 1 Am. Lead. Cases, (H. & W.’s notes,) *31; Ringold v. Waggoner, 14 Ark., 69; Apperson v. Burgett, 33 Ib., 328; O'Hair v. Moore, 23 Ohio St., 473; Spense v. Dunlap, 6 Lea, 457.
Let tKe decree be reversed, and the case remanded with instructions to enter a decree in accordance with the prayer of the complaint. | [
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Eakin, J.
There was a suit pending in the U. S. ‘District Court, sitting at Helena, by the firm of T. L. Airey & Co. v. C. Wooten & Co. An attachment issued in that case was levied upon a stock of merchandise, which was claimed by another and different firm from that of C. Wooten & Co., being the firm of Wooten & Sullivan, composed of the plaintiffs in this case, Alice Wooten and J. A. Sullivan. Upon claim being made, and the plaintiffs in the former action declining to indemnify the marshal, he released the goods to the claimants, Wooten & Sullivan, and made a return of his proceedings accompanied with an inventory and appraisement for the goods, amounting to $1,311.08.
Afterwards, Airey & Co. made application to the District Judge and obtained from him an order on the marshal to retake the goods, if the plaintiffs should execute a bond in accordance with Sec. 403 of Gantt's Digest. A bond was thereupon executed by Airey & Co., J. T. Airey and N. Straub, undertaking that Airey & Co. should pay to Sullivan and Mrs. Alice Wooten the damages which they might sustain by reason of the attachment, “ if the order therefor is wrongfully sued out.” This bond recites that the goods had been seized in an attachment as the property of C. Wooten & Co., that an inventory of them had been filed in the cause, and that they had been appraised at $1,400.
The marshal executed the order of the court by retaking such of the goods as he could find, exhibiting with his return an inventory and appraisement of the goods retaken, amounting to $922.64, and also a list with the valuation of he goods, which could not be found, amounting to $428.49. The goods were sold and the money brought into court. Afterwards the attachment was dissolved and by order of the court the net value of the proceeds amounting to $691.36, was paid over to Wooten & Sullivan. The present plaintiffs were not parties to the former suit unless the acceptance of this fund made them so.
The plaintiffs, Alice Wooten and Sullivan, brought this suit in the state court against the sureties, Straub and J. T. Airey, and upon a trial by jury recovered a Verdict and judgment against Straub for $1,232.16. Motion for a new trial was overruled, and defendants, having filed exceptions, appealed. Airey was not served.
No distinct issues of fact were made by the answer. It is directed, principally, to diminish the amount of the recovery, by contending that the defendant, as surety, was liable only for the goods actually taken by the marshal, at the value fixed upon them by his appraisement, after deducting amount paid over to plaintiffs by order of the court.
There is proof tending to show, and sufficiently strong to sustain the verdict, that the value of the goods, actually taken by the marshal, amounted to about $1,745.05, of which $691 was repaid by order of-the court. Calculating interest at 6 per cent., and allowing the credit, the amount of the verdict upon these data is not excessive. We will not attempt to weigh the conflicting evidence as to value.
On behalf of the defendant the court instructed the jury that the measure of damages, if any, which the plaintiffs were entitled' to recovery, was the actual value of the- goods taken by the marshal at the time he was ordered to retake possession, and that such value was to be determined by the evidence. Further, that the burden of proof was on the plaintiffs to maintain their cause by a preponderance of evidence as to the quantity and value of the goods taken; and that the cost price of goods was only one means of ascertaining value; that to constitute it a reasonable measure of value the plaintiffs should show that they purchased the goods at their usual and reasonable market value. The court of its own motion directed the jury that the measure of damages was the actual value in money of the goods attached, at the time and place they were taken by the mdrshal, with interest thereon at 6 per cent.
Two instructions, however, asked by defendant were refused. One was to the effect that the marshal’s return upon the order by the judge, giving a description of the goods taken by him, was conclusive upon the plaintiffs in this action “as to the specific goods taken,” but the value of the goods was to be ascertained from the testimony. The other was, that although plaintiffs did not actually appear in the attachment case, yet if they afterwards accepted the proceeds adjudged to them, they were as much bound by the proceedings in the cause as if they had been made formal parties. The refusal of these two instructions is included in the grounds of the motion for a new trial.
Alice Wooten and Sullivan were not parties to the original suit. Their property was taken out of their hands without warrant of law, by strangers. . They gave no forthcoming bond requiring them to await the action of the court and render the property in execution. They asserted their ownership to the marshal for his information, that he might avoid making himself a trespasser. The court, however, ordered him to proceed, if the plaintiffs in that case would take the responsibility of sustaining the consequences, and give sureties therefor. This could not put the owners of the property in the. position of being concluded by anything the marshal would do or say prejudicial to their rights. They might rest passively upon them whatever they might be ; and if the marshal should take more and different goods, than he saw fit to report, it would be none the less damage which they might sustain from the improper attachment, and which those who gave the bond had thus put in his power, under the order of the court, to inflict. And then, when the damage was done, and a part of the proceeds of sale, after retaining costs for which they were not liable, was voluntarily turned back to them out of court, it would have been hard measure if they could not receive their own, without being concluded by .all that had been done against them in invitum. They might receive them pro tanto in diminution of damages. We do not think the court erred in refusing the instructions. Those actually given embodied the law, applicable to the facts!
We find nothing else in the motion for a new trial, not settled as correct by what has already been said.
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Eakin, J.
Davis & Ketcher, were a firm of hardware merchants in Little Rock. On the 26th of February, 1884, Jno.D. Adams filed this bill against them and other parties, alleging: That being in failing circumstances, they had assigned their stock of merchandise, fixtures, notes, accounts, etc., to J. S. Whiting, in trust, to sell and apply the proceeds to their liabilities, in the following order:
1st. A debt of $4,000, owing the Exchange Bank of Little Rock.
2d. A debt of $3,000, owing the Merchants National Bank, of Little Rock.
3d. Certain other indebtedness described in the deed, owing to S. E. Davis and Mary Weigel. These to be paid in full. The residue to be applied upon all the remaining indebtedness of the firm.
That the trustee was taking an inventory, with the view-of filing a bond with the clerk, as required by statute, and selling the stock at public auction. That this would cause a great sacrifice, as much of the stock consisted of agricultural implements, not immediately in- demand; whereas, with proper precautions, it might be made to realize a good price. He states that he is a surety of Davis & Ketcher, upon the debt to the Exchange Bank, without indemnity; and that he will suffer loss unless that debt is satisfied out of the assigned property. He therefore asks that a receiver be appointed to take charge of the effects, and to collect such accounts as he can, and report those he cannot collect, to be sold.
Upon filing the bill, the court appointed the assignee receiver, who gave bond as such.
The appellant, Bridgeford & Co., is a corporation under the laws of Kentucky. On the 2d of March, 1884, it filed a petition in the case, showing:
That it is one of the non-preferred creditors; and charging that the firm of Davis & Ketcher, in November, 1883, through Davis, obtained a portion of the stock on hand from them by purchase, under fraudulent representations as to facts and circumstances affecting their solvency and ability; and that a large portion of such goods can' be identified in the hands of the receiver. It claims the right to rescind the contract and reclaim the goods, on account of the fraud; and insists also that if it may not do that, it is entitled to a lien upon all the goods-it may identify under the act of March 9th, 1877. Their claim is for $2,635.08. Other points are presented by the petition, but these are sufficient to explain the nature of the case, and the contention as to error. There is a .prayer for general relief.
Davis & Ketcher answered this petition, denying all the material allegations as to fraud.
Other creditors, it seems, made similar claims, as to goods sold by them for goods which might be identified. By consent the receiver was ordefed to proceed with the sales, keeping separate the proceeds of the different lots claimed by the several inter-pleaders, and which might be identified, satisfactorily to his mind. The goods were sold, and the money is now awaiting orders of the court.
Upon hearing, the chancellor refused the prayer of the petitioner, Bridgeford & Co., with costs, giving it, however, a personal decree against Davis & Ketcher for its debt, in the sum of $2,570.52 ; and directing that the receiver, after deducting costs, should pay out the sums in hand according to the provisions of the deed of assignment. The corporation appealed.
First as to the fraud. The chancellor, in a written opinion, finds that the evidence did not sustain it; and, if there had been fraud originally, the sale was afterwards affirmed.
The sales were made to the firm in November, by the agent of. the company of Bridgeford & Co., dealing with Davis. There is some evidence of positive representations as to facts, which, standing alone, would be wholly inconsistent with good faith, but it is to some extent contradicted by other testimony ; and some of the representations or remarks are such, or weré made at such times, that we cannot'infer that they were inducements to the credit given. The impression made upon us by the testimony is that whilst Davis was over sanguine as to the business of the firm, and exaggerated its ability, yet that he is not clearly shown to have spoken or acted with set purpose to obtain credit by fictitious representation. The firm really did meet all its obligations in February, just before the assignment, with which this suit was contemporaneous. Fraud must be shown with a reasonable degree of clearness, and we could not say that the proof of it preponderates here to such an extent as to make it clear that the chancellor erred in his finding.
Besides, the decision of the chancellor is strengthened by events occurring after the purchase in November, 1883. Ample time had elapsed for further enquiries into the condition of Davis 8c Ketcher, when, in February, the agent of the corporation became pressing for security. It is not positively shown that he was then advised actually of the means of the firm, but it is quite certain under the circumstances that men with ordinary business energy and capacity might have become so advised, and it is a fair presumption of fact, that the agent of Bridgeford & Co. was. If he had felt himself to have been misled and deceived, then was the time to have asserted the right of the corporation to rescind the sale, and reclaim the goods. He did not do so, but agreed to be content if the endorsement of the wife of Davis could be got upon some drafts drawn for the debt on the 26th .of December. Davis took the drafts, procured the endorsements, and delivered them to the agent. This was a ratification of the original sale. One who & 0 claims to rescind a contract of sale, must proceed with reasonable diligence, and make such enquiries in reasonable time as would be prompted by reasonable caution in business transactions. It may be expected that persons negotiating for purchases on a credit will present their affairs in the most favorable light, and their representations made in general terms cannot be relied upon prudently.
It does not appear from the written opinion that the chancellor took into consideration the. point made as to the lien of the vendor company under the act of March 9th, 1.877. If it had a lien fixed upon the goods and remaining until payment, or until the goods should have passed into the hands of bona fide purchasers for value, and without notice, then the relief • sought by the appellant should have been granted independently of the fraud.
This is “an act for the recovery of purchase money, con-TV. f. firolA 11c lllbL tracted for property in possession of the vendee.’: The first section provides that in an action brought for ,the recovery of the purchase money, of property remaining in the possession of the vendee, the latter shall not include that property as exempt from seizure and sale under attachment or on execution, or other process from any court for the collection of any debt upon claim of the plaintiff. There is nothing in this to create a lien unless we can say that a creditor has a lien upon all the property of his debtor not exempt from execution. The second section provides that in any such action, that is, an action to recover the purchase money of a chattel sold on credit, the plaintiff upon petition, duly verified, may at the beginning of the suit, or during its pendency, obtain an order from the court or clerk, directing the officer to take and hold the property subject to the order of the court. This is a statutory process for impounding the chattel to prevent alienation pendente lite, and does not imply that a lien exists independently of the process. It is analogous to a specific attachment, which is sometimes given in cases where a previous lien did exist, but the previous lien is in no view essential to support it. The whole matter is statutory and the lien must be found in the plain words, or obvious intent of the statute.
The third section is not relevant to the question now under consideration, and the fourth and last provides that upon showing by the plaintiff that the property has been “ disposed of or concealed ” so that the order cannot be executed, the court may compel the attendance of defendant, and examine him on oath as to -the situation of the property, and enforce its order as in cases of contempt.
As the statute expressly applies only to property remaining in possession of the vendee, it cannot imply a right on the part of the plaintiff to follow the property in the hands of one who in good faith has acquired from the vendee the possession and ownership.^ Construing the sections together it means that the defendants shall not be allowed to conceal the property, or so .dispose of it that it cannot be found whilst it still remains constructively in his possession and subject to his control.
An assignee, who takes property not subject to redemption, 1 1 t»i but to sell the same and distribute the proceeds amongst third parties takes bona fide. He is not indeed such an innocent purchaser for value, as to hold against an equity of a third party, which is in the nature of a lien upon the property itself; but in the absence of any such lien he takes absolutely, so far as the assignor is concerned, and is only under obligations to apply the property to the purposes of the trust.
A case might arise, in which the value of the' article might be considerably in excess of the purposes of the trust, leaving a portion of its value to result to the assignor. How far the vendor in such case might be entitled to be heard in equity to claim this surplus against exemptions, or against general creditors, is a question not now made, or important to be determined. It is not the claim here set up, which is for a preference over the creditors named in the deed of assignment.
We think the statute does not give a continuous subsisting 11 i-i -11 lien on property sold on a credit, but only provides that such property shall not, as against the vendor, be exempted from execution ; and enables the plaintiff in a suit for the purchase money to seize it at once if in the possession or control of the vendee,, without alleging the ordinary grounds of attachment. We find no error in the decree.
Affirm. | [
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Cockrill, C. J.
The appellant was convicted of a violation of the local option liquor law. His appeal questions the sufficiency of the indictment under which the conviction was obtained.
The indictment charges that the appellant did sell “one quart of whisky within three miles of the church-house and schools in the town of Brinkley,” the county court having prohibited, as was alleged, the sale or giving away of intoxicating liquor “within said limits.”
If the indictment had charged that the prohibited limit was within a radius of three miles of the church and school house in the town of Brinkley, it would then be apparent that but one point of beginning was intended. But in the form in which the charge stands, it cannot be inferred that the locality of the church and schools is identical. The natural inference is that more than two points are intended..
In Bailey v. State, 43 Ark., 150, approving Williams v. Citizens, 40 Ib., 290, an indictment under this act was held insufficient, because it undertook to designate two points as the center of the circumscribed district. The decision in that case controls this.
Let the judgment be reversed, with instructions to sustain the demurrer to the indictment. | [
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Wood, J.,
(after stating the facts.) (1) The court did not err in overruling the demurrer to the answer. The appellee being in possession, the presumption is he was the owner or a tenant of the owner. It will not be presumed that his possession was wrongful. Possession is evidence of title, at least to the extent of requiring one who would oust it to show title in himself. The requirement of the law is not met simply by showing prima facie title. The old rule in ejectment that the plaintiff must rely upon the strength of his own title applies here. The burden is upon the plaintiff to show title, not merely prima facie title.
The answer presents a good defense to the action of ejectment. The authorities cited by appellant do not apply, for in resisting the assault made upon its possession appellee is not attacking the prima facie title of appellant. The case is different, however, when appellee by cross-complaint asks the cancellation of appellant’s prima, facie title. This is an affirmative attack upon appellant’s prima facie title. The commissioner’s deed is prima facie evidence of title, and, in order to have it canceled and removed as a cloud, the burden is upon the appellee to show that the deed conveyed no title. Scott v. Mills, 49 Ark. 266. The argument and authorities of appellant to show that appellee’s answer does not state a good defense to the action of ejectment are in point to show that appellee is not entitled to relief on his cross-complaint, and that the court erred in not sustaining the demurrer as to this, and in transferring the case to the chancery court. Possession is not title, and possession alone, without any other evidence of title, is not sufficient to enable one to maintain a suit to remove a cloud and quiet title. By mere possession one does not show that he has any title to quiet. One must have a title before he can maintain suit to have his title quieted by canceling a deed that is a cloud upon his title.
2. The chancellor found “that the record fails to show that R. D. Chotard. the clerk, made a proper certificate and attached it at the foot of the delinquent list filed by the sheriff, showing that said list had been published as required by law, o.r that said certificate was made and attached thereto before the day of sale.”
The law requires the clerk of the county court to record the delinquent list filed with him by the collector in a book kept by him for that purpose, and that he shall certify at the foot of said record, stating in what newspaper said list was published, and the date of publication and for what length of time the same was published before the second Monday in June then next ensuing. The statute provides that this “record so certified shall be evidence of the facts -in said list and certificate contained.” Sec. 7086, Kirby’s Digest. This court has often held that this certificate must be recorded before the day of sale, and that the record, when so made up, is the only evidence of what it should contain. Hunt v. Gardner, 74 Ark. 583; Logan v. Eastern Land Co., 68 Ark. 248; Taylor v. State, 65 Ark. 595; Cooper v. Freeman Lumber Co., 61 Ark. 36; Martin v. Allard, 55 Ark. 218. See also Martin v. Barbour, 140 U. S. 634. What purports to be the certificate of the clerk, made in compliance with the statute, is as follows : “Given to the Chicot Life on the 17th day of May for publication. R. D. Chotard, Clerk. Published in Chicot County-Life for two issues, towit: 21st day of May and 28th day of May, 1901.
[Seal] . “R. D. Chotard, Clerk.”
A certificate is “a writing giving assurance that a thing has or has not been done, * * * that a fact exists or does not exist. To certify is to testify to in writing; to make known or establish as a fact. The word is not essential to a certificate.” Anderson's Law Dictionary “Certificate.” A majority of the court is of the opinion that the statement supra, recorded at the foot of the delinquent list and signed by the clerk, meets the requirements of the law. Secs. 7085 and 7086 of Kirby’s Digest. It was given in the “Chicot Life” on the 17th day of May, and was “published” in the “Chicot Life” for two issues towit: 21st day of May, and 28th day of May, 1901. The “Chicot Life” -indicates the name of the newspaper, and “Chicot” shows with reasonable certainty that it was a county publication. The word “published” shows that it was printed, and the “two issues” “May 21 and May 28, 1901,” indicates that it was a “weekly newspaper,” and published weekly for two weeks showing the length of time it was published before the second Monday in June. Thus every requirement of the statute is met and shown by the certificate. True, the certificate is not dated, showing-that it was entered of record before the day of sale. But, in the absence of a date, and in the absence of proof to the contrary, it follows that it was entered of record before and not after the day of the sale, for the law requires it to be so entered, and the presumption is that the clerk did his duty. This is not a case of substituting other proof for that required by the record, and different proof. -It is a case where, in the absence of any proof, the law by a well-established presumption supplies it.
(Note. The writer does not concur in the view that the certificate can be aided by the presumption as to date, and thinks it fatally defective because it does not bear date showing that it was entered of record before the day of sale.)
The court erred therefore in finding that the clerk did not make a proper certificate.
For the errors indicated the decree is reversed, and the cause is remanded with directions to transfer to the law court, and with leave to amend pleadings if so desired, and for further proceedings not inconsistent with this opinion. | [
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Wood, J.,
(after stating the facts.) First. The passage of the ordinances in question was within the -express powers of the. city council. Secs. 5442, 5448, Kirby’s Digest. The ordinances, when passed and accepted by the water company, became contracts, and binding on the parties thereto. Smith, Mun. Corp. § § 532> 1396. While the members of the council are trustees for the people of the municipality they represent, and as public agents are held to a stricter account than a mere private agent, yet when they act within the scope of their authority, and make contracts which they are expressly authorized to malee, these contracts must be governed by the same rules as other contracts. They can not be set aside upon other and different principles than those that control other contracts. Huidekoper's Lessee v. Douglass, 3 Cranch, 1-70; 1 Rose, notes and authorities cited; Illinois Trust & Savings Bank v. City of Arkansas City, 76 Fed. 271, 34 L. R. A. 518, and many authorities there cited; Little Falls Electric & Water Company v. City of Little Falls, 102 Fed. 663; Jewitt v. Town of Alton, 7 N. H. 257; Western Sav. Society v. Philadelphia, 31 Pa. St. 175; Prather v. New Orleans, 24 La. Ann. 41; Davenport Gas Co. v. Davenport, 13 Iowa, 233.
In the passing of an ordinance contracting for the supply of water to the city, the council must have in mind the interest of the public it-represents; and if the ordinance upon its face is so unreasonable and oppressive as to indicate that it was passed solely in the interest of the grantee of the franchise, it will be set aside. In fixing the terms of such an ordinance the council is acting in a proprietary and ministerial or business capacity, rather than legislative; and while the courts will not interfere to control its discretion to determine whether waterworks are necessary, and its discretion as to whether or not it will grant the franchise to private individuals to furnish same, which is a legislative discretion, they will interfere to inquire whether the contract by its terms is so unreasonable and oppressive'.as to indicate that the council has transcended its authority and abused its powers in ignoring the rights of the people of- the municipality affected by the contract. Valparaiso v. Gardner, 49 Am. Rep. 416. Such a contract would be a fraud upon the taxpayers affected thereby, whether the council were guilty of any intentional fraud or not.
The courts will also inquire as to whether there has been actual or intentional fraud in the making of such contracts. The proof does not show any actual or intentional fraud upon the part of the city council, or any member thereof, in making this contract with the appellee. Nor was there any fraud, or undue influence which would be equivalent to it, upon the part of Mcllroy in relation to the passage of the ordinances. The various things which appellant alleges that Mcllroy said and did, conceding that they are established by the proof, fall far short of constituting fraud or undue influence. Appellants make the mistake all the way in treating Mcllroy as if he occupied some superior and controlling position over the aldermen ofj the city that would enable him to impose upon them, or to exert some undue influence upon them. Nothing is brought forward to establish this, except frequent interviews “on the curb stone, in the streets, behind the corners of buildings and in stairways.” But these do not constitute that undue influence that will avoid a contract. Mcllroy was not the guardian of the aldermen. They were trusted public servants, and are presumed to be fitted, morally and intellectually, for their responsible duties. Surely they were not mere puppets to be moved bnly by the will of Mcllroy. They were dealing at arms’ length with him. Mcllroy had the right to talk with them as much as he pleased about the passage of the ordinances in which he was so vitally interested, and to make the best contract with them he could. They were supposed to be able to take care of the city’s side of the case. The law must so treat them. No charge of corruption on the part of the aldermen or Mcllroy is made, and none is shown. On the contrary, the testimony of the aldermen shows that Mcllroy did not attempt to improperly influence them to vote in favor of the ordinances. Mcllroy had the right to employ counsel for himself, and he had the right to say to the other side that he did not think it needed any counsel. He was not responsible for the failure of the city council to get all the help it could and all the information it wanted. Appellants can not say that Mcllroy made misrepresentations, and was guilty of conceal ments that induced them to pass the ordinances. Mcllroy is not to be censured, nor to lose any of his legal rights, because he had prepared a draft of the ordinances and submitted it to the council. It was for the council to adopt or reject them as they saw proper. When they passed them, they adopted them, and it was the work of their hands, not of Mcllroy’s. The burden of proof was upon the appellants to sustain the charge of fraud and undue influence, and this is not done by fragmentary acts and desultory conversations that might as well be attributed to innocent as evil motive. But to review in detail the evidence upon which appellants rely to show fraud and undue influence would unnecessarily lengthen this opinion. It is all of a kind. It shows acts upon the part of the council, its attorney, its members, committees or citizens, for which Mcllroy is in nowise responsible. And it shows acts upon the part of Mcllroy that- do not offend legitimate business methods. We are therefore of the opinion that the charge of fraud and undue influence is not sustained.
Second. Are the ordinances contrary to the Constitution,' the laws, and policy of the State? Section 12 of ordinance 135 provides that the city “shall have the right to purchase said water works at the expiration of ten, fourteen, and eighteen years at the fair and reasonable price thereof, subject to any bona ñde indebtedness that may exist thereon.” By section 13 authority is given the water company to incumber “the works by a mortgage or otherwise, and it is provided that the money due from the city to the water company for hydrant rental shall be retained by the city treasurer as net earnings of the water company, and shall be held by him in trust for the payment of the rental of the indebtedness of the water company.” It is also stipulated in this section that, should the city fail to pay its water rentals when due, the deferred payments shall bear eight per cent, annual interest. It is contended that these provisions are in violation of the Constitution prohibiting cities from issuing interest-bearing evidences of indebtedness, etc. Const., art. 16, § 1. But the provisions named are susceptible of no such construction. The city is not compelled to purchase the water plant. It may do so, if it desires. In case it should, inasmuch as its purchase would be subject to any bona ñde existing indebtedness to a limited amount, it has provided that such indebtedness should not be unnecessarily increased by accumulations of unpaid interest. In other words, it has provided a method of requiring the water company to pay its interest. The ordinances, as construed by the chancellor, limit the bona ñde indebtedness which the water company may incur at an amount not exceeding $1,250 for each hydrant erected and such additional ones as the city might order. Were the city compelled to purchase at an amount limited by the ordinance, but bearing interest, there would be more plausibility in appellant’s contention, but such is not the case. The contract on the part of the city to pay interest on the amount for hydrant rentals, in case same was not paid when due, is not issuing interest-bearing evidences of indebtedness. See Smith, Mun. Corp. § 738; City of Valparaiso v. Gardner, supra. It is not to be presumed or assumed that the city will not meet its obligations when due.
It is contended that the ordinances contravened sections 5445-5447 of Kirby’s Digest, “in that they attempted to tie the hands of future councils by fixing the rates to be paid by the city and a minimum rate to be paid by the consumers for twenty years in the future, and contracts for a renewal in the event the city did not buy.”
The ordinances fix the rate of hydrant rentals to the city for twenty years and the minimum charge to consumers, but we find nothing in the ordinances fixing the minimum charge to consumers for any specified time. Sections 5445 to 5447 of Kirby’s Digest authorize the city council, upon the complaint of five or more citizens of the town that the water company “is charging an exorbitant rate for the supply of water,” to make investigation ; and if they find that "the citizens, or any number thereof, are being charged an unreasonable price for water,” it shall be theii duty to fix a reasonable price, and the water company is required “to adopt such rates.” These sections embody the provisions of an act passed April 21, 1903. Ordinance 135 was passed October 26, 1903, and ordinance 137 was passed after that. If there were any conflicts between the provisions of the ordinances and the statute, of course the statute would prevail, as the requirements of the statute must be read into every contract entered into after its enactment. Western Sav. Society v. Philadelphia, supra. But we fail to see any conflicts. There is no inhibition on fixing a rate that the city shall pay for its hydrants. There is no proof'-in the record that the rates fixed by the ordinances are. exorbitant; but if they were, the matter is entirely within the control of the council, under the plain provisions of the statute. See City of Carlyle v. Carlyle Water, L. & P. Co., 31 Ill. App. 325.
In Danville v. Danville Water Company, 178 Illinois, 299, in which is a statute similar to the one under consideration, it was held that although a city has been empowered by statute to authorize a private corporation to construct waterworks and to contract for a supply of water for a period not to exceed thirty years, a subsequent statute empowering any city in which a private corporation has been or may be authorized to supply water for public use, to fix reasonable water rates, is .constitutional, and an ordinance passed under a later statute reducing existing water rates, and fixing them at a reasonable price, is valid, although the city enacting it has, under the earlier statute, attempted by ordinance to fix water rates at certain figures for the unexpired term of thirty years. See also Rogers Park Water Co. v. Pergus, 178 Ill. 571.
The contention that the ordinances “appropriated all of the revenue of the city for years to come in advance of its levy and collection” is not sustained by the proof. ■ True, the proof tends to show that the amount contracted to be paid for hydrant rentals, in connection with the other expenses which the city had incurred, would absorb all the revenues at the time the contract was made. But there was no proof, and could be none, of what the revenues of the city would be in the future. No one could tell, of course, with certainty what its wealth and population would be, and what would be its sources of revenue. It had grown rapidly in the past; and might continue to do so. We see nothing in the ordinance in conflict with art. 16, § § 10, 11, 12 of the Constitution. A contract by the city with the water company to pay a stipulated amount for hydrant rentals is not an appropriation of the revenue by the city, in advance of that levied and collected. It is simply a contract to pay, and not an appropriation of specific funds to the purpose. Moreover, the amount agreed to be paid for hydrant rentals was not an amount equal to all the revenues of the city, ,
Third. In assignments numbered from three to nineteen, inclusive, learned counsel, in their able and exhaustive brief, urge that the ordinances are unjust, unreasonable and oppressive, and that for these and various other reasons they are void. We will treat these as numbered, and in the order named in appellant’s brief:
3. The appellee had about eleven years of unexpired term to operate its system under the Rees contract when ordinance 135 was passed. That ordinance granted a franchise for twenty years, beginning from the day of its passage. So in reality it was an extension of the franchise for only about nine years. But the'power to determine how long such privileges shall be exercised is discretion lodged in the city council, or governing boards, which some courts have been unwilling to disturb under grants of thirty or even fifty years. Little Falls Electric Co. v. City, 102 Fed. 665; California Reduction Co. v. Sanitary Works, 199 U. S. 317.
4. There is nothing in the face of the ordinances, or in the extraneous proof, to show that the amount agreed to be paid as rental per annum for hydrants was unreasonable. We could not determine, without some evidence upon the subject, what hydrants should rent for in a city of the population of Fayetteville, under a system of waterworks such as has been installed there. The presumption is that the council did its duty, and investigated to determine what would be the reasonable value of such rental before fixing the amount. The length of time, as we have shown, was in the discretion of the council primarily, and no abuse of such discretion has been proved.
5. Appellants contend that the condition for the extension of the mains under the ordinances in controversy is unreasonable, and say that under the old (Rees) ordinance extensions could have been compelled without expense to the city. The proof showed that it cost about $50 to put in a fire hydrant. Prior to Mcllroy’s purchase, a proposition had been made to the city by Rees for certain extensions, upon condition that the city locate a hydrant every 450 feet and pay not exceeding $75 each for putting in the hydrants. This proposition had been accepted by the city. Under the Rees contract extensions could have been compelled, but only where there was “an average of one consumer to every 100 feet of pipes.” While the hydrants were only to be put in when ordered by resolution of the city council, they were to cost not exceeding $75 each, and the city was to pay an annual rent therefor °of $35: Had the extension been made under the Reqs ordinance and the proposition for extension which Rees had made and the city had accepted, the additional hydrants might have cost the city $75 each, and the hydrant rental would have been the same as it is under the ordinances in controversy. It is clear from this that the city council either did not consider that extensions could be compelled under the Rees contract without expense to the city, or else they concluded that it would be unjust to have extensions made without ordering and paying for hydrants. There is no complaint or showing that this contract with Rees was unreasonable or oppressive. A priori, would the contract with appellee for the extension of mains not be unreasonable and oppressive, for, under it, the city was to secure eighteen additional hydrants, without any charge for furnishing or placing same, thus saving the city in this particular $1,350. The extension could have been compelled under the contract with appellee, as well as under the contract with Rees. The purpose of both was to supply “with water the streets, lanes, alleys, squares and public places” in the City of Fayetteville. But the extension could only be compelled upon the terms of the contracts, which were the same in the particular of requiring an extension only where there was “an average of at least one consumer to every 100 feet of pipes.” This was not an unreasonable requirement. It was expensive to extend the water system, and the water company could not be expected or required to do so where there was no prospect for reasonable remuneration. If the amount the consumers had to pay was found to be unreasonable, they have their remedy under the statute, as we have shown. But the court held this part of the ordinance void, and we need not consider it further. The council under the Rees ordinance thought it proper to require the city to locate a hydrant for every 450 feet of main and to pay therefor not exceeding $75 per hydrant. The contract with appellee for the extension of mains is more favorable than that. Since the hydrants cost $50 each, we do not consider that a profit of $25 each to appellee for furnishing and placing same would be exorbitant ;■ at least not so much so as to avoid the contract.
6 and 7. The contract for main extension was not unreasonable. The city is amply protected under the various provisions of the ordinances for its water supply, both as to quantity and quality. Appellee contracted on his part, in consideration of the “rights, privileges and franchises” granted it by the city, to supply “with water the streets, lanes, alleys, squares and public places in the city of Fayetteville,” and to “enlarge the capacity of the waterworks plant to such an extent” as “is necessary to meet the growing demands of said city for such water supply.” Appellee has the exclusive right to supply water for “extinguishing fires in said city,” and “for domestic, manufacturing' or industrial uses.” These are the uses named; others would be implied if necessary to give the city water, for that was the evident and expressed purpose of the contract. The “water shall be supplied from West Fork of White River, and be of the purest quality obtainable, either directly from the stream or from wells adjacent thereto, or from any source from which the said company may desire to procure same, except from below the mouth of the town branch.” The terms of the ordinances carefully and specifically provide that the pipes shall be large enough and the pressure great enough" to supply water for “all domestic, manufacturing and industrial uses in every part of the city” where appellee under the terms of the ordinance could be compelled to extend its pipes.
Said ordinances provided in the way of fire protection the following:
“Sec. 17. The said water company, its successors and assigns, are to supply and maintain sufficient pressure to discharge through fifty feet of two and a half (2^2) inch hose, one (1) inch smooth-bore nozzle, four streams simultaneously to a height of sixty-five (65) feet on the public square from the four hydrants located thereon; and sufficient,to discharge through a like hose and nozzle from a hydrant to be located by the city council on Dickson Street, at a point south of the University, a stream to the height of sixty-five (65) feet. Said watei; company further agrees, after receiving forty-five minutes’ notice given by the chief of the fire department of said city to its engineer at its pumping station, and upon the opening and closing by said fire department, or by the agents of said water company of the necessary valves at the reservoir, to give direct pressure from the pumping station (provided the opening and closing of said valves be required to furnish sufficient 'pressure to throw three streams simultaneously on the public square through such hose and nozzle to a height of seventy (70) feet, or two streams to a height of eighty (80) feet, or one stream at said hydrant south of the University to a height of seventy-five (75) feet.”
Section 11 is as follows:
“Sec. 11. For the full term of twenty (20) years provided for in this contract, the said Fayetteville Water Company, its successors and assigns, shall continue and furnish without default a constant and uninterrupted supply of water to said city for the various uses as hereinbefore set forth, provided if at any time the supply of water shall cease or make default from any cause of neglect on the part of said Fayetteville Water Company, its successors and assigns, for five days at any time, then the city may take charge temporarily of said works, machinery and appliances, and operate the same until by sureties or otherwise said works will be efficiently operated and the expense incurred by said city in operating the same shall be a lien upon the earnings of said works until paid. In case the water company fails to supply water, then all hydrant rentals shall cease until such time as the same is supplied.”
Under these provisions, the apprehension that the city will be “at the mercy of the water company for all time as to the amount of water to be supplied” is groundless. Likewise the fear that the contract does not require “pure, clear or wholesome water to be furnished.”
The contract calls for the “purest water obtainable,” and for a bountiful supply; and if the water company neglects co comply with its contract for five days, its property under section 11 is practically confiscated to the city'during the time of such neglect. This is the remedy provided by the contract itself for its enforcement, and it is cogent. But if there were a substantial and continued breach of contract in this or any other respect, the city would have the usual remedy in a court of chancery.
8. The proof tends strongly to show that better protection of the University Buildings from fire than had obtained under the Rees ordinance was one of the objects in contemplation of both parties in the passage of the ordinances in controversy. If it shall be demonstrated that the contract fails to carry out one of the purposes that the parties had in view, to givé protection from fire to the University buildings, it will be time enough then to seek to set aside the contract on that ground. There is no proof in this record showing that the waterworks system when fully installed, as contemplated by the contract with appellee, will not afford ample protection to the University buildings. No tests have been made, and no proof offered, showing to what height water can be thrown under the improvements to be made by appellee.
9. The ninth assignment has been disposed of under another head.
10. The chancery court held with appellants on the objection raised in this assignment, and the water company has not appealed.
11. The chancery court enjoined the water company from mortgaging or bonding its plant for more than $1,250 per hydrant. The appellee has not appealed from this. So, under the decree of the court, the bona fide bonded indebtedness of the water company can not exceed $1,250 for each hydrant. It may be less. Learned counsel for appellants argue that the contract is unjust and oppressive, and that, unless it is declared void, the only way the city can secure relief is to purchase for the full value of the property, subject to any indebtedness that the water company may have bonded the plant for. If the city were required absolutely to purchase the waterworks, after a stated period, for its full value, and subject to an unlimited indebtedness, or even to an indebtedness equal to $1,250 for each hydrant the city might order, the contract would probably be unreasonable, as showing a disposition upon the part of the city council to allow the waterworks an exorbitant profit, and thus to ignore the rights of the city. But such is not the case. As we have shown, the city is not required to purchase at all, but has the option to do so, in ten, fourteen and eighteen years. If the city should not desire or be in condition to purchase, it is but just to the company that its franchise be extended for a reasonable time, for otherwise its property would be valueless and confiscate.
We do not agree with the counsel that the contract giving the city the option to purchase, or else binding it to extend the franchise, places an unreasonable burden upon the city which it can only remove by purchase of the property. The contract is comprehensive enough in its general scope, and yet specific enough in details, to assure the city an excellent water supply. But, if it is found by actual experience that the contract was an improvident one, the city is not “left at the mercy” of the appellee “for all time,” as counsel assert, for its water supply. In case the city does not exercise its option to purchase, it is only required to extend the franchise “on fair and reasonable terms.” Again, while the language of the contract to the effect that the appellee “shall have the exclusive right to maintain and operate waterworks,” etc., is doubtless sufficient to inhibit the city from granting the privilege to any other corporation, company or individual, we doubt whether it is sufficient to prevent the city from maintaining its own water plant. “It is,” says the Supreme Court of the United States, “important that the court should adhere firmly to the salutary doctrine underlying the whole law of municipal corporations and the doctrine of the adjudged cases, that grants of special privileges affecting the general interest are to be liberally construed in favor of the public, and that no public body, charged with public duties, be held upon mere implication or presumption to have divested itself of its powers.” See also Joplin v. S. M. Light Co., 191 U. S. 150; Stein v. B. Water Co., 141 U.. S. 67. These authorities at least leave it an open question, and we need not, and do not, decide it, for we are of the opinion that the ordinances are valid, regardless of whether or not the city could own and maintain its own water plant.
12, 13 and 14 have been disposed of in what we have already said.
15. The court held that those provisions of the ordinances allowing arbitrators, in case of disagreement by the parties, to fix the value of the waterworks plant, and to stipulate the terms of extension, were void. Therefore appellants can not complain.
16. The contention that the ordinances are void on account of ambiguities of expression in certain sections of the contract is not well taken. The meaning of these terms and sections is easily discoverable from the context, and can readily be made certain when considered in connection with other parts of the contract and the subject-matter thereof. The rule of “id certum est quod certum reddi potest,” would apply to the uncertainties of which appellants complain, and the contract should not be avoided on account of these.
17. The contract requires the appellee “to construct and maintain a dam four or five feet high at the river near pumping station for impounding water.” It is contended that no right of way had been obtained, and that this provision would result in flooding farms for which the city would be liable. The securing territory for the dam, and the damages that might result to property owners by reason of its construction, are matters that do not concern the city under the contract. The city could not be held responsible in any way for the failure of the appellee to carry cut its contract in this respect with the city, nor could the city be held liable for any damages to .third parties caused by the performance of the contract by appellee. These are questions for the appellee to settle, not the city. Not until appellee fails or refuses to comply with its contract in these particulars can the contract be avoided for that reason. It suffices that the question is not for decision now.
18. It is contended that ordinance 137/ which is brought in question by the supplemental complaint, is void for the reason “that it was not signed by the presiding officer.” The .record of the passing of this ordinance is as follows: “Regular meeting of the city council, November 9, 1903; present J. T. Eason, Mayor, Fred Jones, Recorder. 'Aldermen, Atha, Chapman, Hansard, Hight, Phillips, Conner. After which said ordinance was by Fred Jones, acting mayor, (J. T. Eason, Mayor, having been excused on account of sickness) declared adopted and finally passed. Said ordinance as amended and finally passed and adopted is as follows:” (Here follows ordinance.)
“There being no furrher business, on motion of Chapman, seconded by Hansard, council adjourned.
“Fred Jones, Acting Mayor; C. O. Hansard, Acting Recorder.”
The statute provides: “All by-laws or ordinances shall, as soon as may be after their passage, be .recorded in a book kept for that purpose, and be authorized by the signature of the presiding officer of the council and the clerk.” Sec. 5473, Kirby’s Digest. The record shows a compliance with the statute as to authentication. Jones was the presiding officer at the time of the passage of the ordinance, and Hansard was the acting clerk or recorder. They signed the record containing the ordinances. But the proof shows that ordinance 137 was passed because it was feared that 135 had not been passed, and 137 was intended as a substitute for 135, in the event 135 had not been legally passed. The proof shows that ordinance 135 was legally passed. Indeed, the complaint and the contention of appellants all the way are bottomed on the fact that the ordinances were passed. Assuming and alleging that they were passed, appellants seek to set them aside for the various reasons set up in the complaint.
19. It is not the law that “if the ordinance was void in part, it was void in toto.” 'Judge Dillon says: “If part of a by-law be void, another essential and connected part of the same by-law is also void. But it must be essential and connected to have this effect.” 1 Dillon, Mun. Corp. § 421; 1 Smith, Mun. Corp. § 542. This is the well-settled doctrine, and has been more than once announced by this court. Rau v. Little Rock, 34 Ark. 303; Eureka Springs v. O'Neal, 56 Ark. 350. See also State v. Marsh, 37 Ark. 356; Little Rock & F. S. Ry. Co. v. Worthen, 46 Ark. 312; State v. Deschamp, 53 Ark. 490; Leep v. Ry., 58 Ark. 407; Ex parte Deeds, 75 Ark. 542. It should be remarked that in the cases in our own court recognizing the principle, the ordinance.or act under review was an expression of the will of the State or municipality in its govermental, rather than proprietary or business, capacity. But we do not see why there should be any distinction as to the parts of acts or ordinances that are prejudicial to the interest of the State or city, and that were no part of the consideration or inducement for the contract, so far as the State or municipality is concerned, but were engrafted solely for the benefit of the other party to the contract. So long as the party for whose benefit these provisions were made is not complaining, the other side should not be -heard to complain if such provisions are removed. The parts of the ordinance which the lower court declared void were easily severable and made independent of the other portions, declared valid, and there can be no doubt that the city council would have passed the ordinance with these portions omitted, for they conserved the interest of the appellee, and not the city and its inhabitants and taxpayers. Appellee does not complain of the ruling of the court in canceling these provisions, and appellants should not.
20. The adjustment of costs was largely in the discretion of the lower court. The chancellor doubtless concluded that appellants obtained no substantial relief, inasmuch as the avowed object of the litigation, the cancellation of the contract, was decided in appellee’s favor; and, as we find no error in this ruling, the judgment of the court will be in all things affirmed. | [
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McCulloch, J.
Appellee, Malone, rented land to one Williams, who raised a crop of cotton thereon, and sold a portion of the crop when gathered to appellants, Earl Bros. & Co. Appellee brings forward an account against the tenant in the sum of $54 for advances alleged to have been made by him to enable the tenant to make and gather the crop, and asserts a lien on the crop for such advances, and sues appellants in equity to .recover the amount. It is alleged in the complaint that appellants had notice of appellee’s lien for supplies when they received the cotton from Williams. The chancellor found in favor of appellee, and rendered a decree against appellants for the amount of the debt, which was less than the value of the cotton .received by appellants.
It is contended on behalf of appellants that the items of the account sued on do not constitute necessary supplies, within the meaning of the statute, to enable the tenant to make and gather the crop, and that the testimony in the case does not show that appellee furnished the articles to his tenant for that purpose.
The statute in question provides that “if any landlord, to enable his tenant or employee to make and gather the crop, shall advance such tenant or employee any necessary supplies, either of money, provisions, clothing, stock, or other necessary articles, such landlord shall have a lien upon the crop raised upon the premises far the value of such advances, which lien shall have preference over any mortgage or other conveyance of such crop made by such tenant or employee.” Kirby’s Digest, § 5033.
The language of the statute is broad enough to give the landlord a lien for the price of any article furnished to his tenant which was reasonably necessary in the making or gathering of the crop. It is not essential that the article furnished shall have been for direct use in the cultivation. The statute reads “any necessary supplies, either of money, provisions, clothing, stock, or other necessary articles.”
This court, in discussing the question whether or not the price of a cow sold to a tenant could be considered within the language of the landlord’s lien statute, said: “But, as milk is a common and useful article of diet, and as probably the cheapest way for a farmer to obtain it is to own a milch cow, such animals might be a part of the supplies needed by a tenant and his family to enable him to make a crop, just as any .other provisions would be needed; while, on the other hand, if he bought them for speculation only, they would not be supplies for making a crop. So medical supplies and attention, when furnished or paid for by the landlord, might be necessary supplies, if needed to enable the tenant to go ahead with the work.” Bourland v. McKnight, 79 Ark. 427.
The items objected to by appellants as not being “necessary supplies” are the following ones found on the account, viz.:
“i sewing machine ........................ $12.50
“Ginning and wrapping...................... 22.00
“Pasturing............................... 2.00.”
Now, it is just as essential in the economy of a household for the housewife to have a sewing machine with which to provide the wearing apparel of the family as it is to have the material for the garments; it is as provident for the landlord to furnish as pasture for his tenant’s stock as it is to sell him corn to feed them with; and the ginning and baling of cotton is just as essential in the harvesting and preparation of the staple for market as it is to pluck it from the stalk. The -language of the statute should be given a reasonable interpretation, in the light of the manifest purpose which the Legislature, had in view when it was enacted, and it is obvious that it was intended to embrace any article which the landlord advanced to his tenant for use in or in aid of the making and gathering of the crop. Jones v. Eubanks, 86 Ga. 616; Trimble v. Durham, 70 Miss. 295; Brown v. Brown, 109 N. C. 124.
The testimony is not as full or satisfactory as it might be concerning the necessity for furnishing the supplies. Appellant exhibited his account, and stated in his testimony that he furnished the articles to his tenant “upon the faith” of his landlord’s lien. He was not examined - or cross-examined further on the subject, and thát was all the testimony on that point. This statement was, however, together with the list of articles furnished which were all appropriate for use in making and gathering the crop, sufficient to warrant the chancellor in finding that they were necessary supplies, and were furnished for that purpose.
It is argued here that the right to assert a lien on the crop was barred by the statute of limitations, but we find that this was not pleaded below, and the question can not be. raised here for the first time.
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McCulloch, J.
This is an action brought by the plaintiff, G. A. Stites, against the St. Louis, Iron Mountain & Southern Railway Company, to recover the value of a mule owned by plaintiff which is alleged to have been run over and killed by the negligent act of the defendant’s servants in the operation of a train. Double damages are claimed on account of the alleged failure of the defendant’s servants to post a notice of the killing at the nearest station house, as required by statute.
Judgment was rendered in favor of the plaintiff for $200, double the value of the animal as found by the jury, and the defendant appealed.
The allegation as to failure to post notice of the killing at the nearest station house and the prayer for recovery of double damages were brought into the complaint by amendment filed more than one year after the mule was killed, and it is insisted here that that part of the cause of action was barred by the statute of limitation. The statute of limitation was not pleaded below, and the question can not be considered.
It is contended that there was no proof that the mule was killed by the running of defendant’s train, and that no presumption of negligent killing arose from the fact that the mule was found dead on the right of way. There was, however, more proof than that merely of the finding of the dead animal on the right of way. The evidence was circumstantial, but sufficient to justify the jury in drawing the inference that the mule was killed by a train. As has been many times decided by this court, no presumption of negligence arises against a railroad company for the killing of stock until it is proved that the killing was caused by the running of trains (St. Louis, I. M. & S. R. Co. v. Hagan, 42 Ark. 126; Ry. Co. v. Parks, 60 Ark. 189; Ry. Co. v. Sageley, 56 Ark. 549) ; but the killing of the stock maybe proved by circumstantial, as well as by direct, evidence. Here there were strong circumstances, in addition to the fact that the dead body of the mule was found near the track, tending to show that it had been struck by a train, and fully warranted the jury in so finding. The court especially charged the jury that they could not indulge any presumption as to whether or not the mule was killed by the train; that they must find it from a preponderance of the evidence. The plaintiff testified that the first information he received about his mule having been killed was from the section foreman and one of the section hands who told him that the mule had been killed at Knuckles’s Spur, where they had buried it. It is not disputed that the mule belonged to plaintiff, that the dead body was found by the section men and buried on the right of way near Knuckles’s Spur. The only controverted questions were whether or not the mule was killed by a train, and whether notice thereof was posted at the nearest station house. So the statement of the plaintiff as to what the section men told him was not prejudicial.
The evidence was conflicting as to whether the notice was posted at the nearest station house, and the question was fairly submitted to the jury upon proper instructions. The verdict is conclusive of that question.
No error is found in the instructions of the court on anj branch of the case.
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McCulloch, J.
The Board of Directors of St. Francis Eevee District' brought this.suit in chancery against the Jonesboro, Lake City & Eastern Railroad Company, and other delinquent taxpayers in Craighead County, to enforce payment of the levee tax due for the’ year 1903 on the land of the delinquent named as defendants in the complaint.'
The appellant appeared in the suit and filed its answer contesting- the right of appellee to collect the levee tax, and from a decree in favor of the plaintiff appeals to this court.
It is contended that appellee has not sufficiently alleged in the complaint, nor established by proof, its right to levy and collect the tax assessment claimed in the complaint. The particular defect in the complaint relied on by appellant seems to be that it contains no specific allegation that before the assessments were levied on lands in the district an election by landowners was held, •pursuant to the act of the General Assembly creating the district, and that at such election a majority of the landowners was present and voted in favor of the project. The complaint does allege, in general terms, that the lands were duly assessed as provided by the act of the General Assembly, and that the taxes were duly extended. This was a statement — imperfect, perhaps —of a good cause of action. It was not questioned by demurrer or otherwise, and was sufficient to warrant a decree. The statute authorizes the Board of Directors of St. Francis Levee District to maintain suits in the chancery courts of the respective counties in the district for the enforcement1 of delinquent levee taxes, and provides that such suits “shall be conducted in accordance with the practice and proceedings of chancery courts in this State except as herein otherwise provided.” Now, the distinction is plain between a complaint -which wholly fails to state a cause of action and one which imperfectly states a cause of action. The former will not, whether challenged by demurrer or not, authorize a judgment of the court, whereas the imperfections of the latter are waived unless taken .advantage of by a motion to make more definite and certain. Choctaw, O. & G. Rd. Co. v. Doughty, 77 Ark. 1; Fordyce v. Merrill, 49 Ark. 277; Murrell v. Henry, 70 Ark. 161.
Counsel for appellant rely upon St. Louis, I. M. & So. Ry. Co. v. Dudgeon, 64 Ark. 108; but in that case the sufficiency of the complaint was challenged in apt time by demurrer, and the defendant rested upon the demurrer, without pleading over. The case at bar is different.
The only testimony introduced by appellee to show that the meeting of the landowners had been held, and that a majority of the landowners were present at the meetings in the several coun ties and voted in favor of assessing the lands annually, was the record of the board of directors containing a certificate or report of the president, secretary and treasurer showing that they had canvassed the returns of said election, giving in detail the vote on the question in each county, and that a majority of the Iand-< owners had attended. The act creating the levee district provides that the return of this election shall be made to the secretary of the board, and that that officer, together with the president and treasurer, shall canvass the returns, declare the result and give notice thereof throughout the district. The certificate of these officers and the record thereof made by the board of directors, being records authorized in the line of their duties, were competent and prima facie evidence of the facts therein recited. Overstreet v. Levee District, post p. 462.
The regularity and validity of the assessments, and the competency of the testimony establishing same, are in other respects questioned by appellant, but we find that the record evidence introduced by appellee at the hearing below was sufficient to establish, prima facie, the validity of the assessments in accordance with the statute.
The question of the competency of such testimony is controlled by the recent decision of this court cited above.
The statutes authorize the assessment of railroad property bv the mile for levee purposes in this district. This was done. The court below rendered a decree for the amount of the tax, penalty, costs, etc., and declared the same a lien on the road as a unit, ordering a sale by commissioners in the event of failure to pay. That was correct.
This court in Kansas City, P. & G. Rd. Co. v. Waterworks Imp. Dist., 68 Ark. 376 said: “There is no authority to sell a section of the right of way of a railroad, although a lien is declared thereon for the assessment. Elliott says (§ 791) that it is the general rule ‘that where the statute specialty provides a remedy for the enforcement of the assessment, that remedy must be pursued; but if a right be given, and no remedy prescribed, the courts will usually provide the appropriate remedy.’ Whether we term this assessment a debt against the railroad in personam, or only in rem against the particular property, it can only be col lected against the road as a unit; that is, against the whole road within the State.”
Decree affirmed. | [
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Hill, C. J.
This is a petition to quash on certiorari a judgment of Jefferson Circuit Court sentencing the petitioner to pay a fine of $300 and to serve six months in jail.
The petitioner was regularly indipted by the grand jury of Jefferson County for disturbing the peace by use of profane and insulting language. He pleaded guilty, and the circuit court, in order to ascertain the proper punishment, called the witnesses. It was shown that petitioner became very angry over being arrested and confined-in the city jail, and while therein he used language towards the chief of police and all other uniformed officers who came near him which is disgusting in its depravity. A stream of vile vituperation was poured at these -officers for an entire day. The petitioner seemed to have a vocabulary fertile in indecency and obscenity.
The court assessed the maximum punishment permitted by the section under which he was indicted. Kirby’s Digest, § 1648. A motion for new trial on the ground of excessive punishment was filed and overruled, and time given for bill of exceptions. The bill of exceptions was never prepared, and the appeal not presented until the transcript was lodged here with this petition for certiorari. Petitioner shows no reason for failing to properly prosecute his appeal. An intimation is made that the officers were derelict in getting up the record, but the law affords an ample remedy for that. In re Barstow, 54 Ark. 551. His attorneys abandoned him, but he employed his present counsel; how soon afterwards is not shown. It is alleged that his new counsel could not prepare the bill of exceptions, but the record shows that the court stenographer took down all the proceedings. Certiorari can not be used as a substitute for appeal except in instances where the right of appeal has been unavoidably lost through no fault of rhe petitioner. Burgett v. Apperson, 52 Ark. 213. It can only correct excess in jurisdiction or an illegal proceeding not reviewable otherwise, and like matters, and does not reach to the question here presented — an alleged excessive punishment within limits of the penalty. Burgett v. Apperson, supra; McKay v. Jones, 30 Ark. 148; Carolan v. Carolan, 47 Ark. 511; Reese v. Cannon, 73 Ark. 605, and authorities therein; Harris on Certiorari, § 44. As the question of the alleged excessive punishment is not properly here, the court does not express an opinion on the subject. If this record be treated as an appeal, there is no bill of exceptions preserving and authenticating the evidence, and hence there is no relief on appeal. If it be treated as on certiorari, which it is, only the jurisdiction or legal course of proceeding are under review, and there is no point made against either.
The judgment should not be quashed, but should be affirmed. Harris on Certiorari, § 38. Let an order be entered accordingly. * | [
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Hill, C. J.
Morrow bought two mules of Watts, and gave his note therefor. Upon default in payment Watts brought suii upon it before J. D. Summers, a justice of the peace of Marion County. Summers’s wife was an aunt by marriage of the wife of Morrow. This fact was known to Summers and the parties to said suit. Judgment by default was taken in justice court, and Morrow appealed to the circuit court. Morrow made a motion to dismiss the action for want of jurisdiction, setting forth the relationship of the justice of the peace to his (Morrow’s) wife. This was overruled, and the case went to trial on an issue of fact. Morrow contended that the mules were warranted to be natives of Boone County, Arkansas, and three years old, and that one of them proved to be four years old, and both were natives of Western Texas.,, There was evidence tending to prove that western mules lacked the sweetness of disposition possessed by Arkansas mules, and were wild and hard to manage, and not so healthy in this climate. This question of fact as to the warranty was decided against appellant by the judge sitting as a jury. Having evidence to support it, the finding on this issue can not be disturbed.
Quite a troublesome question is raised as to the proceeding before the justice of the peace. The argument is that the relationship of the justice of the peace to the defendant rendered the judgment void; that the justice had no jurisdiction, and the circuit court could acquire none on appeal.
There is much conflict in the authorities as to whether a judgment rendered by a disqualified judge is void or voidable: . some holding it is mere error, while others hold it renders the judgment void and subject even to collateral attack. 17 Am. & Eng. Ene. pp. 742, 743, xo66. A like diversity of opinion exists as to whether the disqualification of a justice of the peace can be waived, in the absence of statutory authority for the waiver. 18 Am. & Eng. Ene. p. 43. By common law interest in the subject-matter was ground of disqualification, but relationship to a party was not a disqualification. 17 Am. & Eng. Ene. p. 733. In fact, aside from disqualification for interest, the various matters disqualifying judges must be looked for in statutes and Constitutions.
The Constitution of 1874 says: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, nor where either of the parties may be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.” Art. 7, § 20. It will be noticed that the disqualifying degree of relationship by consanguinity or affinity is left to the General Assembly, and not fixed by the Constitution, and there has been no legislation on the subject since the adoption of the Constitution. It is also a controverted question herein whether “justice” in this clause refers to justices of the peace.
The Revised Statutes contained this act:
“No judge of the circuit court, justice of the county court, judge of the court of probate, or justice of the peace shall sit in the determination of any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity, or shall have been of counsel, without the consent of parties.” Chap. 43, § 24.
In English’s Digest (1848), this section is divided: One part appearing in the chapter on courts of record, ch. 50, § 16, where justice of the peace is omitted, and the part relating to justices of the peace appears in chapter relating to justices of the peace. Ch. 95, § 7.
In Gould’s Digest (1858), the statutes appear as in English’s, being ch. 50, § 16 and ch. 99, § 7, respectively.
In Gantt’s Digest (1874), the phraseology is changed in the section relating to judges of courts of record, arid it appears: “No judge of the circuit court” shall sit, etc. Gantt’s Digest, § 1159-
In Mansfield’s Digest it appears as “no judge shall sit,” etc. Mansf. Digest, § 1471. The subsequent digesters have followed Judge Mansfield’s text. Sandels & Hill, § 1302; Kirby’s Digest, § 1526.
The part of the original section relating to justices of the peace is dropped in Gantt’s Digest, and does not appear in any subsequent one. The only reason to be found for the omission of the section relating to them is found in the act of April 29, 1873, entitled “An act to define the jurisdiction and regulate the course of procedure in courts of justices of the peace in civil actions.” The whole subject-matter was covered by this legislation, and among other provisions is one providing where the justice before whom the suit is brought is “of near relation’” to one party, the other may make the same cause for change of venue. This is Kirby’s Digest, § 4571. This act is doubtless the cause of the authors of Gantt’s Digest omitting the section of Rev. Stat. relating to disqualification of justices of the peace, and subsequent digesters have accepted the text of their predecessors, which is the rule unless an error is discovered or the law is changed.
Whatever may be the effect generally of the act of 1873 on the disqualification of justices of the peace, certainly as to the disqualification for near relationship it merely makes it ground for change of- venue, and not ground to avoid the judgment.
The original act, even if in force,' provided that the disqualification could be waived by consent; and when a party, knowing the relationship, permits judgment to go by default, and does not raise the question of jurisdiction until in the circuit court, he may well be held to have consented to the proceeding in the justice court. In Pettigrew v. Washington County, 43 Ark. 33, a failure to call the county judge’s attention to the fact that his son was one of numerous defendants in a certain case before that court was held to have been a waiver of the disqualification.
Taking any view of the judgment, it was not without the jurisdiction of the justice of the peace to render it, and the circuit court acquired jurisdiction on appeal.
Judgment affirmed. | [
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McCulloch, J.,
(after stating the facts.) 1. The court, over the objection of defendant, gave the following instruction, which is assigned as error, towit:
“No. 9. Damages for torts are not weighed in golden scales; and if the jury find from the evidence in this case that the defendant was grossly negligent in assigning plaintiff to work where the danger was latent and known, or that the condition of the machinery, by the exercise of ordinary prudence or care, should have been known by the defendant, then they are war7 ranted in assessing punitive damages in this case.”
This instruction was improper, and should not have been given. The evidence does not, in the first place, disclose any elements calling for the infliction of punitive damages. In the next place, it was error to say that gross negligence alone is sufficient, without any element of wilfulness, wantonness or conscious indifference to consequences from which malice may be inferred, to justify the infliction of punitive damages. Arka nsas & La. Ry. Co. v. Stroude, 77 Ark. 109; Railway v. Hall, 53 Ark. 7.
It was also erroneous, a fortiori, in declaring that the defendant would be liable for punitive damages if it was guilty of negligence in assigning plaintiff to work in a place which by the exercise of ordinary care it could have known was dangerous.
2. Lr.ror of the court in giving the following instruction is assigned:
“No. 11. The court charges the jury that if they believe from a preponderance of the evidence that the plaintiff was injured by reason of the set screw, and that the same was so set or arranged that it increased the risks or -dangers of the employee, plaintiff here, or that the lever attached to and connected with the ‘idler’ was so defective that it could not be properly or efficiently used in stopping said saws, when in motion, and that these defects were latent, defendant is liable.”
The effect of this declaration was to make the defendant the absolute insurer of plaintiff’s safety while performing service. It is true, as we said in Southern Cotton Oil Co. v. Spotts, 77 Ark. 458, the master is bound to know of the structural parts of the machinery furnished tó thq servant, yet this instruction makes the master absolutely liable, regardless of the question of his negligence or care in selecting the machinery, because the arrangement of the set screw increased the danger. This court has many times said that the master is not the insurer of the servant’s safety, but is only held to ordinary care in providing a safe place and safe appliances in which and with which the servant is to work. L. R. & F. S. Ry. Co. v. Duffey, 35 Ark. 602; St. Louis, I. M. & So. Ry. Co. v. Harper, 44 Ark. 524; Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333; Railway Co. v. Jagerman, 59 Ark. 98; Park Hotel Co. v. Lockhart, 59 Ark. 465.
This instruction was erroneous in submitting to the jury the question concerning the alleged defect in thg lever attached to the machine. There was no evidence that this defect contributed to the injury. There was no evidence that any attempt was made to control the machine with the lever so as to avoid the injury, or that it, the injury, could have been avoided if the lever had been in perfect order. The plaintiff’s own testimony shows that when the set screw caught his jumper his hand was thrown upon the saw so quick that he could not get away and could not have stopped the machine by Use of the lever.
Other errors of the court are assigned; but as those already .indicated herein call for reversal of the case, it is unnecessary to discuss the other assignments, further than to say that the rulings of the court concerning the binding effect of the release executed by the plaintiff, and the necessity for return of the consideration paid therefor, fall within the decision of this court in St. Louis. I. M. & So. Ry. Co. v. Brown, 73 Ark. 42.
Reversed and remanded for a new trial.
Hire, C. J., disqualified and not participating. | [
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Riddick, J.
This was an action to recover .damages on account of the construction of a levee by the defendant across the farm of plaintiff and the taking of land for a right of way therefor. While the damages allowed by the jury were liberal, the evidence, we think, was sufficient to sustain the verdict, and we find no error in the rulings of the court on the admission of evidence or in its instructions to the jury.
The main defense set up by the defendant seems to have been that the right of way to construct the levee had already been granted by a deed duly executed by plaintiff. This deed, which is set out in the statement'of facts, purports to convey “the right of way” over the land in question “for the purpose of constructing and maintaining any and all levees that may be built thereupon as a protection against overflows.” This deed was made out on a printed form for a deed prepared by the Levee Board, and recited a nominal consideration of $1.00. We are of the opinion that the deed gave only one right of way across the land; and when a right of way across the land was selected and occupied by the construction of a levee, the defendant could not construct another levee across the land on a different line without securing another right of way. We think that the circuit court correctly held that only one right of way could be taken under it, and that, after that had been selected and occupied, the power of the deed was exhausted, and no other right of way could be taken under it.
On the whole case we are of the opinion that the judgment should be affirmed, and it is so ordered. | [
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Hill, C. J.
J. N. Pitzele was a depositor in appellant bank, and on January 12, 1901, made a deposit to his account which was then overdrawn, and which still left an overdraft of $1,056.36. but the assistant cashier in entering the credits made an error and left an apparent overdraft of only $56.35 instead of $1,056.36. Pitzele died January 28, 1902. Tetters testamentary were granted to the executor of his will on February 3, 1902. In July, 1904, an expert accountant examining the books of appellant’s bank discovered the error. In January, 1905, the bank brought this action against the heirs and distributees of Pitzele’s estate to recover said amount and to enjoin the executors from paying out funds' in their hands to heirs and distributees. There was an allegation that Pitzele knew of the error, and some evidence tending to prove it. There was no evidence that the heirs or distributees or executors had any knowledge of the error. The bank did not keep daily balances between individual accounts and the genral account of debits and credits. The evidence of the error was as patent when it occurred as when it was discovered, but it would have taken either a more accurate system of bookkeeping than the one employed or an expert accountant to have earlier discovered it.
The recent case of Planters’ Mutual Ins. Co. v. Nelson, ante, p. 103, is not distinguishable in principle from this one. .
The statute of non-claim is to free an estate of unpresented demands after two years from grant of letters except actions arising after two years as therein explained.
The bank had two years after grant of letters, which would give it over three years from the event in this case, to discover its cause of action and evidence to sustain it; and all that time the evidence rested in his own books, only awaiting a proper examination to be revealed.
The statute of nonclaim bars such actions.
Judgment affirmed. | [
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Hill, C. J.
I. Calfee sued Chas. M. Simon, Julia Simon and Arkansas Stables on two promissory notes for $125 each in favor of J. P. Allen & Company, signed by Chas. M. Simon and assigned to Calfee, a member of Allen & Company, and indorsed by Julia Simon and Arkansas Stables. Julia Simon went out of the case on a plea of coverture. The complaint alleged the indorsement of the notes by Arkansas Stables, a corporation organized under the laws of Arkansas.
The answer did not deny this allegation as to the corporate existence of Arkansas Stables.
The first point made is that there was no evidence introduced to show that the Arkansas Stables was a corporation which could bind itself by indorsement. There was no necessity of any evidence of the corporate existence of the Arkansas Stables, as the apt allegation of it in the complaint was not denied.
Where the power of the officers of a corporation to bind it is challenged in an answer, the authority should be shown in evidence, and not presumed. City Electric St. Ry. Co. v. First Nat. Exchange Bank, 62 Ark. 33. But a corporation can not avail itself of a want of power or lack of authority of its officers to bind it unless the defense is made on such grounds. Thompson on Corp. § § 7617-7619.
2. The defense to the notes was that Allen & Company and Simon entered into a contract to bid on some Government mail contracts, that they secured two such contracts, that Allen & Company knew the contracts were illegal, that the notes were executed in pursuance of the alleged contract; and further alleged that, after the bids were accepted, Allen & Company represented that the contract existing between them and Simon was illegal, and the postoffice department was canceling all contracts of like nature to theirs, and for mutual protection they would sell their interest for $500 to him, and that on the strength of such inducements Simon executed the notes sued upon, and that such representations were false and fraudulent.
Issue was then made and sent to a jury on instructions given at instance of appellant to this effect: If Allen & Company by false representation induced Simon to execute the notes in suit, then to find in favor of Simon. Simon sustained his allegation with his own evidence. Appellee presented a wholly different version. The jury rejected Simon’s version, and that necessarily meant that the notes were not executed under any representations that the contract were illegal, etc. Now, appellant insists that the contracts were void, as against section 3963, Rev. Stat. U. S. and certain postal regulations. This is an inconsistent attitude for appellant. In the circuit court he contended that he was falsely induced to believe the contracts were illegal; now he insists they were illegal. This, of course, can not be permitted.
It is not necessary to take up the other side of the question, and determine whether or not the original contract was contrary to the postal laws. Appellant is not in a position to require it. Not only has he taken an inconsistent attitude towards it, but shows that he actually carried out the contracts. He can not be heard to say that an executed contract was illegal,- in order to defeat the payment of a note given for an interest in it. Having found it legal in fact, he can not say it was illegal in theory, and thus escape his obligation given in order to receive the whole benefit of that contract.
The judgment is affirmed. | [
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Wood, J.,
(after stating the facts.) It conceded in the brief of counsel for appellant that the charge of the court was the law applicable to the facts. But it is contended that the court erred in the following particulars:
1. In permitting the appellee to testify to the loss and value of articles not set out in his bill of particulars.
2. In allowing the deposition of John E. Miller to be read in evidence by the appellee.
3. In refusing to direct a verdict for appellant because: (a.) The proof wholly failed to connect appellant with the setting or keeping of the fire, (b.) The proof wholly fails to show that appellee’s house caught from the burning trash, and (c.) Because there iis no evidence of negligence in the setting or keeping of said fire, and no circumstances from which the jury might infer negligence.
4. The court should have set aside the verdict and awarded a new trial. The verdict traversed the evidence as well as the charge of the court, and ought not to stand.
First. The permitting appellee to testify to the loss and value of articles not 'set out in the bill of particulars was only tantamount to permiting appellee to amend his complaint and bill of particulars, so as to embrace such articles. There was no error in this.
Second. There was no error in permitting the deposition of Miller to be read 'in evidence. It was taken by consent to be read as evidence. The deposition discloses that the witness was a resident of Illinois. The witness was not in attendance upon the court. Under our statute, aside from the agreement of counsel, the deposition was admissible. Secs. 3157-58, Kirby’s Digest.
Third. There was testimony tending to show that the premises on which the fire in controversy was set, were under the control of appellant, and that one in his employ who set this fire had been in the habit of piling and burning rubbish there, and from this source a fire had previously occurred which had burned the fence of appellee, and that appellee, had notified this servant that the fires he was making would “burn appellee out.” This testimony was clearly admissible, as tending to show that appellant had knowledge of the fact that the fires that were being kindled on his premises were dangerous to the property of appellee. Having such knowledge, the duty was imposed upon appellant to observe ordinary care to see that such fires were kept under proper control.
The evidence of such fires repeatedly occurring, of which appellant had knowledge, is a circumstance, which was proper to be considered in determining whether appellant had exercised ordinary care to prevent the fire which caused the injury complained of.
Fourth. As to whether or not the fire, which caused appellee’s injury, was produced through the negligence of appellant was a question of fact which the court sent to the jury under proper instructions. There was evidence sufficient here to uphold the verdict. Affirm.
District of Columbia v. Armes, 107 U. S. 519, and cases cited.
Sec supra; also other cases cited in appellee’s brief. | [
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Hill, C. J.
This case has been presented with Kansas City Southern Ry. Co. v. Ingram, ante, p. 269, and the law as therein announced controls in this, but the facts are different. Appellee’s mule was killed by appellant’s freight train in the night time about the 22d of January, 1904, on appellant’s track in Poteau Bottom in the Choctaw Nation, near the city of Fort Smith, Ark. Appellee’s evidence showed the mule was found knocked off the railroad dump, evidently killed by the train. There were no footprints showing he had been on the track for any distance before reaching this point. Appellee’s case rested upon evidence showing that the country was level and open, the track straight, and the view along it unobstructed for more than a quarter of a mile either way, and that an object as large as a mule could be seen by a light thrown from a locomotive headlight a distance of a quarter of a mile. All of this was competent evidence, tending to prove negligence ; and it was necessary to- prove negligence, as there was no statutory presumption of negligence arising from the killing of the stock by thg train, as there is in Arkansas. It may be noted that there is a dearth of evidence showing that the mule was on or-near the track sufficient time to have been seen by the train operatives if they had been on the watch, even if the fog had not been an element in the case. Concede, however, that appellee’s evidence, unexplained, would support the verdict, yet the case must be reversed on account of the uncontradicted and undisputed evidence of the engineer excusing the failure to see the mule.
He says that a dense fog enveloped the Poteau Bottom on the night when he struck this mule; that such fogs were frequent at that season and place, and on this particular night he could not see an object ten feet ahead of the engine. He says he was funning the train at its usual rate, about sixteen miles an hour, gave frequent blasts on the whistle on account of the fog, and that he saw the mule only an instant before he struck it, and he could not tell whether it was on the track or trying to cross it. He could do nothing to prevent injury in the instant elapsing from discovering the mule till it was struck. The engine waq. equipped with a standard oil headlight, the usual kind on freight locomotives, and it was a good headlight.
This testimony was undisputed and uncontradicted, and not weakened by cross-examination, and no attack is made on the credibility of the witness. The testimony is reasonable and consistent in itself, and, if true, conclusively shows that there was no negligence in not earlier seeing the mule, and that its death was an unavoidable accident. There is nothing in appellee’s testimony inconsistent with the entire truthfulness of the engineer’s evidence. In fact, there is not a particle of evidence on either side impinging on the truth of any evidence on the other side. The court should not have submitted the case to the jury, for there was no issue of fact for its determination, and no state of facts about which reasonable men could draw different conclusions. The jury did not have a right to arbitrarily disregard this testimony after it was submitted to them. St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514, and cases there cited.
Reversed and remanded for a new trial. | [
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Tom Glaze, Justice.
This appeal primarily involves a materialman’s lien claim and the constitutionality of Ark. Code Ann. § 18-44-115(f) (1987). Generally, under § 18-44-115(a)-(d) (1987), the principal contractor, prior to any materials being supplied, must give notice to the property owners of any potential lien claimants under his contract before a lien can be acquired against the owners’ property. Provision (f) of § 18-44-115 exempts a licensed contractor doing industrial or commercial construction from having to give such notice to property owners.
In the present case, appellees Robert and Thelma Mosley, as property owners, contracted with appellee Paul Sanders Contracting, Inc. (Sanders), as the principal contractor, to construct a commercial building. Appellant, a licensed contractor, had contracted with Sanders to furnish and install tile required in the Mosley project. Neither Sanders nor the appellant gave any notice required under § 18-44-115. Thus, when the Mosleys paid Sanders the full amount of the contract, $361,000.00, and Sanders failed to pay appellant, the appellant brought this suit against the Mosleys and Sanders for labor and materials and to establish, among other things, its materialman’s lien against the Mosley’s property. In doing so, appellant claimed § 18-44-115(f) did not require it to give the Mosleys any notice as a predicate to obtaining its lien.
The Mosleys defended appellant’s suit by filing a summary judgment motion, arguing that the notice exemption for licensed contractors doing commercial construction in § 18-44-115(f) violated the equal protection clause, and therefore was unconstitutional. Agreeing that the statutory provision was unconstitutional, the trial court found the materialman’s lien to be unenforceable, and it dismissed appellant’s suit with prejudice. On appeal, the appellant argues that the appellees did not have standing to challenge the constitutionally of § 18-44-115(f) and that the trial court erred in finding that statutory provision unconstitutional. We see no merit in the appellant’s arguments and therefore affirm.
First, we address the appellant’s argument that the Moselys do not have standing to challenge the constitutionality of § 18-44-115(f). Specifically, the appellant argues that we should not address the Moselys’ equal protection argument because they are not in one of the classes, licensed contractors or unlicensed contractors, affected by provision (f); thus, they are asserting rights that are personal to others. We do not agree.
This court has held that to have standing to challenge the constitutionality of a statute, it must be unconstitutional as applied to the litigant. A party may not obtain a decision on the validity of a statute on the ground that it impairs the rights of others. Mahurin v. Oaklawn Jockey Club, 299 Ark. 13, 771 S.W.2d 19 (1989). But, one whose rights are affected by a statute has standing to challenge it on constitutional grounds. Macgruder v. Arkansas Game & Fish Comm’n, 287 Ark. 343, 698 S.W.2d 299 (1985).
In Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981), we held that a beneficiary of a will had standing to argue that the statute permitting a widow to take her dower or one-third interest against the will violated the equal protection clause because no similar provision was provided for males. In holding the beneficiary had standing, this court stated the key to deciding whether the beneficiary had standing to challenge the statute’s constitutionality was whether the party (beneficiary) stood to lose financially. Id. Likewise here, if the notice exemption provided for licensed contractors in provision (f) is found to be constitutional, then the Mosleys’ property is subject to a materialman’s lien claim, of which they had no prior notice. In these circumstances, the Mosleys unquestionably stand to lose financially.
In addition, the Mosleys were also affected by provision (f) in another respect. As indicated previously, the primary purpose of § 18-44-115 is to give property owners notice of possible lien claims against their property. With advance notice, property owners can make provisions to protect their property from such claims. Provision (f) took away the Mosleys’ right to notice, therefore we agree with the trial court’s finding that the appellees had standing to challenge the constitutionality of the statute.
Since we hold that the appellees have standing, we address their argument that § 18-44-115(f) violates the equal protection clause. In pertinent part, § 18-44-115 provides the following:
(a) No lien may be acquired by virtue of this subchapter unless the owner or his authorized agent has received, by personal delivery, or by certified mail return receipt signed by addressee only requested a copy of the notice set out in subsection (c) of this section, as evidenced by the signature of the owner, prior to the furnishing of the material, fixture, engine, boiler, or machinery. The notice required by this section shall not require the signature of the owner or his authorized agent in instances where the notice is delivered by certified mail.
(b) It shall be the duty of the principal contractor to give the owner or his authorized agent the notice set out in subsection (c) of this section on behalf of all potential lien claimants under his contract prior to the supplying any materials, fixtures, engines, boilers, or machinery. Any potential lien claimant may also give notice. However, no lien may be acquired for any material, fixture, engine boiler, or machinery furnished prior to the receipt of notice by the owner or his authorized agent.
* * *
(f) The provisions of this section shall not be applicable to commercial and industrial construction performed by contractors licensed under § 17-22-101 et seq.
This court has stated that all reasonable doubt must be resolved in favor of the constitutionality of a statute, and the burden of proving a statute to be unconstitutional is upon the party challenging it. Citizens Bank v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984). And, if it is possible for this court to construe a statute as to meet the test of constitutionality, it will do so. Taylor v. Finch, 288 Ark. 50, 701 S.W.2d 377 (1986) .
The appellees argue and the trial court held that provision (f) is unconstitutional because it granted a special privilege to a “class” of people (licensed contractors) not belonging to all. As set out above, provison (f) exempts licensed contractors performing commercial and industrial construction from giving notice to property owners. Of course, the equal protection clause does not prohibit all statutory classification. Yarbrough v. Ark. State Hwy. Comm’n, 260 Ark. 161, 539 S.W.2d 419 (1976). Classification is permissible if it has a rational basis and is reasonably related to the purpose of the statute. Dicks v. Naff, 255 Ark. 357, 500 S.W.2d 350 (1973), cert. den., 415 U.S. 958 (1974).
In reviewing, § 18-44-115, we see no rational basis for the classification of licensed contractors performing commercial and industrial construction from other contractors. The purpose of this statutory provision was to give property owners notice, as required by the due process clause, of possible lien claims against their property. See generally Nickles, Creditor’s Professional Remedies and Debtor’s Due Process Rights: Statutory Liens in Arkansas, 32 Ark. L. Rev. 185 (1978).
Appellant argues that commercial property owners are more sophisticated than residential owners and that § 18-44-115(f) merely recognizes that such commercial owners, contracting with licensed contractors, are more capable of protecting themselves against potential lien claims. We cannot agree.
First we are not persuaded that a person hiring a licensed contractor to do commercial or industrial construction needs less protection than a person doing residential construction. Such an argument erroneously assumes that all persons building commercial or industrial facilities are more sophisticated than those involved in residential construction — a presumption that we cannot indulge. Second, while we are aware that licensed contractors are subject to strictures and qualifications that unlicensed contractors are not, see Ark. Code Ann. §§ 17-22-301 — 315 (1987) , we fail to see how those requirements aid property owners in obtaining the notice necessary to protect themselves against potential lien claims against their property.
Finally, the mere fact that a contractor is licensed and is performing commercial or industrial construction does not remove the property owner’s constitutional right to have notice of lien claims so the owner can protect his or her property. On this point, we recognize that the trial judge did not address the notice question in due process terms. However, in making their constitutional argument below, the Mosleys not only relied on their equal protection argument, but also broadly cited to the fourteenth amendment to the United States Constitution when discussing § 18-44-115(0 and its failure to provide notice to property owners. In any event, even though the trial court failed to mention in its decision provision (f)’s failure to afford property owners due process, we will affirm the trial court’s judgment if it is right even though the court announced the wrong reason for its ruling. See, e.g., Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).
For the reasons stated above, we affirm.
Brown, J., concurs.
Although not relevant here, any potential lien claimant may, of course, give notice so as to perfect his lien. See § 18-44-115(b).
We note the trial court made other rulings not at issue in this appeal. In this connection, the trial court found that the laborer’s lien was unenforceable because the appellant’s evidence failed to show the labor costs less profits. The trial court awarded a judgment in favor of the appellant against Paul Sanders Construction, Inc. and Paul Sanders, individually, for $12,120.00. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Stacey Howard, brought this action as attorney in fact for his common-law wife, Deborah A. Knight. Howard seeks to recover damages from the appellee, George Hicks, for the alleged trespass upon Ms. Knight’s property to cut and remove hay.
The trial court granted Hicks’s motion for directed verdict at the close of Howard’s case on the basis that Howard had failed to properly prove each element of damage. Howard appeals alleging the trial court erred “in granting a summary judgment.”
For the sake of clarity, we note first that this case involves a directed verdict and not a summary judgment. Accordingly, in Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989) (citing Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987)), we stated that, in addressing the issue of whether a directed verdict should have been granted, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Where the evidence is such that fair-minded people might have different conclusions, then a jury question is presented, and the directed verdict should be reversed.
In this case, Howard presented testimony that Hicks had made five cuttings of hay during 1986-88 of approximately 700 bales of hay per cutting and that the value of a bale of hay was approximately $1.00. Howard asserted that Hicks had cut the hay on Ms. Knight’s property without her permission and claimed resulting damages. Hicks, in his pleadings, defends on the basis of consent through Ms. Knight’s step-father, the prior owner of the property, agency, and Ms. Knight’s own acquiescence.
Hicks’s motion for directed verdict was based on the premise that Howard had not presented any evidence as to Hicks’s cost of production in cutting and baling the hay. The trial court agreed and granted the motion.
Liability and the measure of damages in this case, if any, depend upon a determination of whether Hicks was a trespasser and, if so, whether the trespass was willful or unintentional.
We need only say that by requiring Howard to prove the value less costs, the trial court assumed that there was a trespass and that the trespass was unintentional or in good faith. That was error because a jury could have concluded that there was no trespass at all or that the trespass was willful.
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